Northern Ireland - Social Security and Child Support Commissioners' Decisions

TMcM -v- Department for Communities (HB) [2018] NICom 34

 

 

Decision No: C1/18-19(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 11 April 2017

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 11 April 2017 is in error of law. The error of law will be explained in more detail below. I would ask the Legally Qualified Panel Member (LQPM) to note that during the course of the proceedings before me, the Department has identified errors in the decision-making process giving rise to the appeal which were not drawn to the attention of the appeal tribunal.

 

2. Pursuant to the powers conferred on me by Section 59 and Paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.

 

3. I am remitting the case to Land and Property Services (LPS) to undertake remedial decision-making in connection with the appellant's claim to Housing Benefit (HB). It will be for LPS to determine whether they now have the requisite evidence and/or information necessary to make a decision on the claim or whether further such evidence/information is required from the appellant. The appellant may, in any event, think it appropriate to further such additional evidence/information which he feels is relevant to the claim. Any further decision will, of course, carry a further right of appeal to an appeal tribunal.

 

Background

 

4. In the proceedings before the Social Security Commissioners, the appellant has represented himself. The Department has been represented by Mr McGrath from Decision Making Services (DMS).

 

5. In his detailed written observations on the original application for leave to appeal, Mr McGrath provided a detailed background to the proceedings before the Social Security Commissioners which I have adopted as follows:

 

6. On 23 June 2016 (the appellant) returned the application form for housing benefit that he had requested and was issued to him on 23 May 2016.

 

7. On 8 July 2016 Land and Property Services issued a letter to (the appellant) requesting information that was not contained within his original application. This letter stated that (the appellant) should return this information within one month.

 

8. On 30 August 2016 (the appellant) returned the letter that was issued to him on 8 July 2016 with some of the additional information that had been requested. (The appellant) stated that he would forward his farming accounts as soon as his accountant was able to do so.

 

9. On 5 September 2016 a decision maker extended the time for (the appellant) to supply his self-employment accounts by one month with the new deadline set for 5 October 2016.

 

10. On 13 October 2016 a decision maker decided that (the appellant's) claim was refused as the information requested had not been supplied. Notification of this "decision" was issued to (the appellant) on 13 October 2016. This notification letter also stated that if (the appellant) supplied the information that had been requested within one calendar month from the date of this notification this decision would be reviewed.

 

11. On 8 November 2016 (the appellant) requested an appeal of the decision dated 13 October 2016 stating that he would send his accounts when they were ready.

 

12. On 15 November 2016 Land and Property Services issued a letter to (the appellant) explaining why the previous decision had been made. This letter also requested that (the appellant) provide the information which was originally requested within one month in order for his claim to be reconsidered.

 

13. On 1 December 2016 a response was received from (the appellant) in which he included some additional information regarding additional land he held and while he stated that his accounts would follow from accountant he did not supply bank account statements.

 

14. On 29 December 2016 the decision on his claim dated 13 October 2016 was reconsidered but was not changed and this was notified to (the appellant) on 29 December 2016.

 

15. On 1 February 2017 the appeals officer reconsidered the decision dated 13 October 2016 but it was not changed. Notification of this decision was issued to (the appellant) on 1 February 2017.

 

16. On 11 April 2017 a tribunal disallowed (the appellant's) appeal. On 9 May 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 30 August 2017 the application for leave to appeal was refused by the LQPM.

 

 

Proceedings before the Social Security Commissioner

 

17. On 20 September 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 10 October 2017 observations on the application were requested from Decision Making Services (DMS). In written observations received on 10 November 2017, Mr McGrath supported the application on grounds identified by him. The written observations were shared with the appellant on 14 November 2017. There has been no further response from the appellant.

 

18. The file was referred to me on 10 April 2018. On 21 June 2018 I granted leave to appeal. When granting leave to appeal I gave, as a reason, that for the reasons which had been set out by Mr McGrath, it was arguable that the decision of the appeal tribunal was in error of law. On the same date I determined that an oral hearing of the appeal would not be required.

 

Errors of law

 

19. 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?

 

20. 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."

 

Analysis

 

21. In his careful analysis of the application for leave to appeal, Mr McGrath made the following submissions:

 

 

 

 

'Decisions/Determinations

 

On 5-9-16 the decision maker determined that the time limit for (the appellant) to provide his self-employed accounts should be extended to 5-10-16.

 

On 13-10-16 the decision maker determined that (the appellant's) application for benefit was not valid as his claim is defective and he has failed to supply income details.

 

The decision maker referred to regulation 63(1) of The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006.

 

This regulation relates to the extension of time to supply the required information in connect with a claim.

 

The notification for this "decision" issued on 13-10-16 however stated that (the appellant's) claim had been disallowed under regulation 82(1) of the Housing Benefit Regulations (NI) 2006 because he had not provided the evidence.

 

I would note that regulation 82(1) of the Housing Benefit Regulations (NI) 2006 although similarly worded as regulation 63(1) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 is not appropriate in this case as (the appellant) had attained the qualifying age for State Pension Credit.

On 29-12-16 the decision maker gave a "decision" of "No change" because (the appellant) had failed to provide the evidence required to support [his] claim.

 

The notification of this "decision" stated that "we have not changed our original decision".

 

On 2-2-17 the appeal writer/decision maker looked again at (the appellant's) case and determined that his claim was to remain defective as it could not be assessed without details of self-employed income.

 

In the appeal submission it is noted in the "Conclusion",

 

"without this information the department could not accurately assess the claimant's earnings and the application made on 23-6-16 remains defective.

 

It would appear therefore that the Department has never made a proper entitlement decision on (the appellant's) claim.

 

In the GB Tribunal of Commissioners decision R (H) 3/05 which dealt with claims for Housing Benefit and Council Tax Benefit it was held that,

 

1. "a failure to provide evidence or information requested after the receipt of a claim does not render the claim defective (paragraphs 69 to 71)"

Paragraph 69 states,

 

The relationship between regulations 72 and 73

 

69. We agree with Miss Roberts and Mrs Grehan that a failure to comply with a requirement to provide information or evidence made under regulation 73(1) after a claim has been submitted does not render the claim defective under regulation 72(6). We found their submissions summarised in paragraph 62 above persuasive.

 

Additionally this Tribunal of Commissioners stated that,

 

2. "although not expressly created within the statutory scheme, a duty to determine claims for benefit must generally be implied into it, since to construe the provisions otherwise would, in the absence of clear statutory language, undermine the entire scheme (paragraphs 72-74)

 

72. Mr Drabble's submissions worked from the premise that, when a relevant authority receives a claim for benefit, it has a general duty to determine that claim. We consider that premise to be correct.

 

73. In the statutory scheme for benefits, there is no express duty on an authority to determine a claim for benefit made to it. Mr Moffett submitted that regulation 76(3) imposes such a duty - but we do not agree. Regulation 76(3) is based upon a presumption that there is a duty (as is regulation 76(1)), but does not create that duty itself. It merely provides for the time in which the duty must be exercised (just as regulation 76(1) merely provides for the person by whom the decision must be made). Parts of Regulation 76 presuppose a duty to decide claims, but that duty is not created by that regulation.

 

74. However, although not expressly created within the statutory scheme, clearly such a duty must generally be implied. As we have pointed out (paragraph 9 above), subject to satisfying the relevant conditions, a person is entitled to a particular housing benefit or council tax benefit. We will come to the detailed statutory provisions shortly but generally, where entitlement to any benefit is dependent upon a claim being made to the relevant authority (as it is by virtue of section 1 of the Administration Act), there must be an obligation upon that authority within a reasonable time properly to determine claims made to it, so that claimants who have an entitlement are identified and paid. To construe the provisions otherwise would be to undermine the entire scheme. There may be circumstances in which a scheme might negate that duty - but for it to do so, clear statutory language would have to be used

 

 

 

 

 

I would also refer to paragraphs 80 and 81 of this decision which states,

 

 

80. However, because of the inquisitorial nature of its function, it may not be possible for the administering authority reasonably to determine a claim until it has required the claimant to provide the relevant information or evidence that it reasonably supposes to be within his knowledge or his ability to obtain. Regulation 73(1) provides a mechanism for such a request. An authority could not reasonably make a decision adverse to the claimant during the currency of such a request but, if the claimant fails to comply with all reasonable requests and the authority has exhausted the other lines of investigation it is bound to explore under the principles set out in Kerr, it will be in a position to decide the claim. Therefore, the consequence of a failure to comply with a requirement to provide information or evidence may be delay in the making of an award (whilst other lines of investigation are explored) or an adverse inference being drawn against the claimant, but it is not an inability to determine the claim at all.

 

81. For these reasons we reject the submissions made on behalf of the Secretary of State based upon the inability of a decision-maker to make a decision on a claim in the absence of information or evidence requested.

 

Therefore I would submit that while the Department sought the required information from (the appellant) in order for his claim to be determined when this was not returned the decision maker should have made a decision on his claim.

 

As already highlighted the appeal submission prepared by the Department has as its conclusion

 

""without this information the department could not accurately assess the claimant's earnings and the application made on 23-6-16 remains defective".

As this lack of a decision was not addressed by the tribunal I would submit that its' decision is erroneous in law.'

 

22. I accept Mr McGrath's reasoned analysis and for the reasons which he has set out agree that the decision of the appeal tribunal is in error of law.

 

23. The principles set out in R(H)3/05 have never been doubted. The decision is one of a Tribunal of Commissioners in Great Britain. The decision is reported in the reported decisions of the Administrative Appeals Chamber of the Upper Tribunal and I adopt the reasoning of the Tribunal of Commissioners and accept that it represents the law in Northern Ireland.

 

 

 

 

24. It seems to me that the decision ought to have been made under regulation 66 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, as amended. These Regulations were made as part of the process of consolidating the Housing Benefit (General) Regulations (Northern Ireland) 1987. Regulation 66 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 relevant authority.

 

(2) The relevant authority shall make a decision on each claim within 14 days of the provisions of regulations 62 and 63 being satisfied or as soon as reasonable practicable thereafter.'

 

25. 'Relevant authority' is defined under regulation 2 as an 'authority administering housing benefit'. Regulations 62 and 63 are concerned with the time and manner in which claims must be made and evidence and information required in connection with a claim.

 

26. The Housing Benefit Regulations (Northern Ireland) 2006 were also made as part of the Housing Benefit (General) Regulations (Northern Ireland) 1987 consolidation process. Regulation 66 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 has a direct equivalence in regulation 85 of the Housing Benefit Regulations (Northern Ireland) 2006. In turn regulation 85 has itself a direct equivalence in Great Britain in regulation 89(1) of the Housing Benefit Regulations 2006. In Housing Benefit and Council Tax Reduction Legislation 2017/2018, the authors have the following to say about the relationship between R(H) 3/05 and regulation 89 of the Housing Benefit Regulations 2006:

 

'The relevant authority must make a decision on each claim. This includes where a claim is defective. The previous version of this paragraph in the HB Regs 1987 - which stated that an authority had no duty to make a decision on a claim which had not been properly made or where the claimant had failed to provide evidence or information in connection with the claim - was ruled ultra vires and of no effect by a tribunal of commissioners in R(H) 3/05. The essence of the commissioners' decision was that there was no power given by primary legislation to local authorities to decide not to determine a claim. See CH 532/2006 for the retrospective application of this decision.

 

The effect of the decision and the subsequent amendments to reg 76 HB Regs 1987 (now consolidated in reg 89 HB Regs (2006) is that a local authority must decide a defective claim at the point in time when the alleged defect will not or cannot reasonably be remedied, and when such a decision is made the claimant has a right of appeal to the First-tier Tribunal against the entitlement decision then arrived at. The decisions made by local authorities in these situations are simply decisions on claims, made on the evidence available, which in most cases will be negative decisions given the likely lack of evidence.

 

 

 

If any support for this is needed it can be gained from what was said in Committee by the Parliamentary Under-secretary of State (Maria Eagle) when reg 4(30 of (the then draft) SI 2004 No. 3368 (which amended reg 76 of the HB Regs 1987) was being considered. She made it plain that the intent of the amendment was to implement in full R(H) 3/05 and that the terms of reg 76(1) HB Regs 1987 required an authority to make a decision on every claim, defective or otherwise.'

 

 

 

 

(signed)

Kenneth Mullan

Chief Commissioner

 

18 July 2018