Northern Ireland - Social Security and Child Support Commissioners' Decisions

MC-v-Department for Communities (HB) [2018] NICom 17

 

Decision No:  C1/17-18(HB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

HOUSING BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 16 March 2017

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 16 March 2017 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

2.     It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Housing Benefit (HB), for a particular period, remains to be determined by another appeal tribunal.

 

         Background

 

3.     On 27 August 2015 a decision maker in LPS decided that the appellant was entitled to HB from and including 3 August 2015 but was not entitled to HB prior to this date.  An appeal against the decision dated 27 August 2015 was received in LPS on 3 September 2015.  The decision dated 27 August 2015 was reconsidered on 7 September 2015 and again on 22 September 2015 but was not changed.

 

4.     Following an earlier adjournment, the substantive appeal tribunal hearing took place on 16 March 2017.  The appellant was present.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 27 August 2015.

 

5.     On 12 May 2017 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  On 7 June 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 

         Proceedings before the Social Security Commissioner

 

6.     On 15 June 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 3 July 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 26 July 2017, Mr Smith, for DMS, supported the application for leave to appeal on one identified ground.  Written observations were shared with the appellant on 26 July 2017.  Further correspondence was received from the appellant on 31 July 2017 to which was attached copies of medical notes and records.  The correspondence of 31 July 2017 and attachments were shared with Mr Smith on 3 August 2017.  A further brief submission was received from Mr Smith on 21 August 2017.

 

7.     On 26 January 2018 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason that an arguable issue had arisen as to whether the appeal tribunal had failed in its inquisitorial role to explore an issue arising in the appeal.  On the same date I determined that an oral hearing of the appeal would not be required.

 

         Errors of law

 

8.     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.  What is an error of law?

 

9.     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.”

 

         What did the appeal tribunal decide?

 

10.   In the statement of reasons for its decision, the appeal tribunal set out the following:

 

‘When explaining why he wanted backdating (the appellant) said ‘I have mental health issues and it was my Solicitor who advised me to do this.

 

(The appellant) submitted evidence to the Tribunal in the form of a letter from Dr G dated 21 September 2015 which indicated that his wife had mental health issues and a letter from Dr W dated 11 September 2015 in relation to (the appellant’s) mental health at February 2015 and commenting in particular that he had poor concentration and forgetfulness at that time.  This was submitted with a list of medication and a rates demand letter of 11 April 2016.

 

(The appellant) stated to the Tribunal that he didn’t claim earlier due to his mental health and memory.  He also stated that he claimed Housing Benefit when advised to do so by his Solicitor who he was attending in respect of issues with his house and family.

 

The Tribunal noted the mental health problems which (the appellant) had and his medication at February 2015 which is the date that he wanted his benefit backdated to.

 

However the Tribunal had to consider whether (the appellant) had a continuous responsibility from that time until he made his claim in August 2015 and the Tribunal having heard from (the appellant) did not accept that this requirement was met by him.  The Tribunal was satisfied that the reason the claim was not made until August 2015 was that (the appellant) was advised to do so at that time by his Solicitor and while he did have some mental health issues this was not the reason that the claim had not been made at an earlier date.  The Tribunal did not find that (the appellant’s) evidence established that his mental health was so severely affected in the earlier period that he would have been prevented from making a claim to benefit.

 

The appeal is therefore disallowed.’

 

         The submissions of the parties

 

11.   In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, the appellant made the following submission:

 

‘Yous keep telling me that I did not send in medical proof but I did, both doctors letters with the right dates.’

 

12.   In his written observations on the application for leave to appeal, Mr Smith has made the following submissions:

 

‘Regulations 81(12) and (12A) of the Housing Benefit Regulations (NI) 2006, as they were at the time (the appellant) made his claim to HB, stated:

 

(12) Where a claimant (“C”)—

 

(a) makes a claim which includes (or which C subsequently requests should include) a period before the claim is made; and

 

(b) from a day in that period, up to the date when C made the claim (or subsequently requested that the claim should include a past period), C had continuous good cause for failing to make a claim (or request that the claim should include that period),

 

the claim is to be treated as made on the date determined in accordance with paragraph (12A).

 

(12A) That date is the latest of—

 

(a) the first day from which C had continuous good cause;

 

(b) the day 6 months before the date the claim was made;

 

(c) the day 6 months before the date when C requested that the claim should include a past period.

 

Regulations 81(12) and (12A), as they were at the time, provided that a claim for HB may be back-dated up to a maximum period of 6 months if the claimant could show that he or she had continuous good cause for not making the claim from an earlier date.

 

The crux of this appeal is then, did (the appellant) show continuous good cause for not making his claim from the earlier date?

 

In his application for HB which was received on 10.08.15 (the appellant) requested that his claim be back-dated to 27.02.15.  At section 12 of the application form (the appellant) stated that his reasons for not claiming earlier were that he had mental health issues and it was his solicitor who advised him to do this.

 

In his letter of appeal (the appellant) reiterated that he suffered from mental health issues with associated memory problems and the ability to deal with necessary business.  He further stated that it was his solicitor who prompted him to make the appropriate change of ownership with the LPS.

 

On receipt of the letter of appeal the decision dated 27.08.15 was looked at again but was not changed.  (The appellant) was notified on 07.09.15 of the LPS’ determination not to change its back-dating decision.  The reasons for the determination were that (the appellant’s wife), who was his carer could reasonably have been expected to explore entitlement to benefit if (the appellant) wasn’t able to and that no medical evidence had been provided in support of his appeal.

 

At a Tribunal hearing on 06.12.16 (the appellant) submitted medical evidence in support of his quest for back-dating in the form of letters from his own doctor, Dr W and his wife’s doctor, Dr G and enclosed detailed records of medication they were taking.  (The appellant) stated that he had forwarded this medical evidence with his original application.  The medical evidence in respect of (the appellant’s wife) indicated that she also suffered from mental health issues.  In light of the new information, the LQM adjourned the hearing and referred the evidence to the LPS for consideration.

 

Unfortunately there is nothing in the papers before me to indicate how the LPS treated the additional information supplied by the LQM or what impact it would have had on the decision not to back-date (the appellant’s) request for HB to 27.02.15.  In any event the decision not to back-date the award of HB remains unchanged.

 

In the record of the proceedings of the hearing on 16.03.17 it is noted that the Tribunal considered the appeal papers including the supporting medical evidence that (the appellant) adduced at the previous hearing and his oral evidence.  The Tribunal stated that it had to consider whether (the appellant) had a continuous responsibility from the date he wished to claim, i.e. 27.02.15 until the date he actually made his claim on 10.08.15.  The Tribunal acknowledged that while (the appellant) did have some mental health issues these would not have prevented him from making his claim to benefit and it was satisfied that the reason he did make the claim was because his solicitor advised him to do so.

 

With regard to (the appellant)’s assertion that he forwarded medical evidence, namely the two letters from his and his wife’s doctors, with his application form, the application form was received in the LPS on 10.08.15 but the letters supplied by the doctors were dated 11.09.15 and 21.09.15 respectively.  For this reason the medical evidence in the form of these two letters could not have been sent to LPS with the application form.  In addition to this, LPS confirmed in its letter dated 07.09.15 that no medical evidence had been provided in support of his grounds of appeal either.  Furthermore there is no evidence to indicate that medical evidence was received until such time as the letters were handed into the Tribunal on 06.12.16.

 

The letter from (the appellant’s) doctor given in evidence at the Tribunal hearing on 06.12.16 states that (the appellant) “was suffering from anxious depression (and still is) around February 2015.  He had poor concentration and forgetfulness.”  The letter does not state how this condition affected (the appellant’s) day to day activities or whether he suffered from this condition continuously between February 2015 and August 2015.

 

While it would appear that (the appellant) suffered from mental health issues, particularly around February 2015, the evidence does not indicate that he suffered from these conditions continuously between February and August 2015 to the extent that he could not have made his claim to HB from an earlier date.

 

The same can be said of the letter from (the appellant’s wife’s) doctor.  While the letter indicates that she also suffered from mental health issues, there is no indication that she suffered these continuously during the period February 2015 to August 2015 to an extent that would have prevented her from making a claim to HB on (the appellant’s) behalf or at least making enquiries that could have ultimately resulted in a claim being made.

 

For this reason the Tribunal was within its right to conclude that it “… did not find that (the appellant)’s evidence established that his mental health was so severely affected in the earlier period that he would have been prevented from making a claim.”

 

…

 

The instant appeal is an appeal against the decision of the LPS not to back-date (the appellant)’s claim to HB to 27.02.15.  Pursuant to Regulation 81(12) of the Housing Benefit Regulations (NI) 2006, as it was at the time, (the appellant’s) claim to HB could have been extended back for a maximum period of 6 months if he had shown continuous good cause for not making his claim from the earlier date.

 

The key word in regulation 81(12) is the word “continuous”.  Regulation 81(12) imposes a duty on claimants to demonstrate that they had good cause for not making a claim to HB from an earlier date and that the good cause existed continuously throughout the period for which they requested back-dating.  In the instant case the onus was on (the appellant) to show that he had good cause for not making his claim to HB on 27.02.15 and that the good cause existed from then until he made his claim on 10.08.15.

 

The Tribunal, while acknowledging that (the appellant) suffered from mental health issues, did not accept that his health issues were so severe as to prevent him from making a claim for the period prior to the date on which he did make his claim.  The Tribunal was of the opinion that (the appellant) made his claim to HB only after his solicitor advised him to do so.  The Tribunal was within its rights to come to this conclusion.

 

Consequently, the Department is of the opinion that (the appellant) has not identified an error of law in the Tribunal’s decision and therefore could not support his application for leave to appeal.

 

Conversely, the Department is also of the opinion that the Tribunal, while acknowledging that (the appellant) suffered from mental health issues, failed in its inquisitorial role to ascertain to what affect (the appellant’s) mental health issues had on his everyday living.  The Tribunal further failed to ascertain if these issues were continuous during the period 27.02.15 to 10.08.15.

 

…

 

In the instant case it is accepted that (the appellant) and his wife, who was acting as his carer, both suffered from mental health issues during the period February 2015 to August 2015.  However, it is not known how the mental health issues impacted on their daily routines; if as a consequence of their health issues they were prevented from making a claim to HB and if these issues were continuous throughout the whole of the period 27.02.15 to 10.08.15.

 

For this reason the Department submits that the Tribunal erred in law in failing in its inquisitorial role to ascertain the extent of (the appellant’s and his wife’s) incapacities and whether these were sufficient to prevent them from making a claim to HB throughout the relevant period.’

 

         Analysis

 

13.   I begin by observing that Mr Smith was correct to state that pursuant to regulation 81(12) of the Housing Benefit Regulations (NI) 2006, as it was at the time, the appellant’s claim to HB could have been extended back for a maximum period of 6 months if he had shown continuous good cause for not making his claim from the earlier date.  Further, Mr Smith is correct to observe that regulation 81(12) imposes a duty on claimants to demonstrate that they had good cause for not making a claim to HB from an earlier date and that the good cause existed continuously throughout the period for which they requested back-dating.  Finally, in its application to the present case, the onus was on the appellant to show that he had good cause for not making his claim to HB on 27 February 2015 and that the good cause existed from then until he made his claim on 10 August 2015.

 

14.   In that context, I find the language used by the appeal tribunal in the statement of reasons for its decision to describe the appellant’s burden if he was to establish an entitlement to HB for the back-dated period to be somewhat curious.  The appeal tribunal has stated that it had to consider whether the appellant had a ‘continuous responsibility’ from 27 February 2015 until the date of claim on 10 August 2015 and concluded that having heard from him ‘… did not accept that this requirement was met by him.’ As noted above, the relevant legislative provisions make no reference to ‘continuous responsibility’.  I place no great emphasis on this aspect of the appeal tribunal’s decision-making, however, save to note that it is incumbent on appeal tribunals to apply the correct legislative tests.

 

15.   I am of the view that the substantive issues raised in this appeal are very finely balanced.  It seems to me, however, that the appeal tribunal, in its reasoning has fallen between two stools.  On the one hand, it has stated that the reason for the failure of the appellant to make his claim before 10 August 2015 was that he had only received advice so to do from his solicitor at that time.  That would probably have been sufficient to dispose of the issues before it but the appeal tribunal has gone on to address the appellant’s mental health and the impact which that might have had on his failure to make the claim before 10 August 2015.  The difficulty is that I agree that the appeal tribunal has not been adequately forensic in its investigation of that issue.  Looking at the record of proceedings for the appeal tribunal hearing it would appear that the LQPM has asked a very general question ‘Why was the claim not made at an earlier date?’ and has recorded, somewhat verbatim, the appellant’s response.  There were no follow-up questions on the issue and the whole appeal tribunal hearing appears to have been quite short.  I am persuaded that the appeal tribunal could have explored this issue in greater detail in line with its inquisitorial role.  With a certain degree of reluctance, therefore, I set the decision of the appeal tribunal aside.

 

         Disposal

 

16.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)    the decision under appeal is a decision of Land and Property Services (LPS), dated 27 August 2015, which decided that the appellant was entitled to HB from and including 3 August 2015 but was not entitled to HB prior to this date;

 

(ii)  the appeal is to be listed as an oral hearing;

 

(iii) I direct that LPS prepare a new submission for the appeal tribunal hearing.  The submission should draw on the analysis undertaken by Mr Smith for the proceedings before the Social Security Commissioner and as outlined above.  On receipt of the submission from LPS the appellant may wish to prepare his own submission in response;

 

(iv) it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

 

(v)  it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

18 May 2018