UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under paragraph 8(4) and (5)(c) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.
2. 1. The decision of the Plymouth appeal tribunal under reference U/03/200/2002/00013, held on 5^th February 2002, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision. In particular, the appeal tribunal must answer these questions:

First, the regulation 6 question: was the claimant liable to make payments in respect of the dwelling? If 'no', his appeal fails. If 'yes', the second question arises.

Second, the regulation 7(1)(a) question: was the agreement pursuant to which he occupied the dwelling on a commercial basis? If 'no', his appeal fails. If 'yes', his appeal succeeds. In answering this question, the tribunal must follow the approach set out in my decision in CH/0627/2002. A copy of that decision must be provided by the tribunal to the parties before the hearing.

The claimant's representative has relied on R v Poole Borough Council, ex parte Ross. There are some factual similarities between the cases. However, I refer the tribunal to paragraph 20 of CH/0627/2002 on the proper approach to the similarity of facts.

The local authority has referred to events that happened after the award of housing benefit was terminated. That is potentially relevant, but only in so far as it shows the nature of the agreement when housing benefit was in payment. It is not uncommon, when a problem arises, for parties to a commercial agreement to operate outside that agreement rather than enforce it strictly to its terms. The tribunal will have to investigate and determine whether that is what has happened here.

The local authority has referred to the verification framework that it uses. That is an administrative arrangement. No doubt, it makes sense for decisions taken on the documents by the officers of the local authority to abide by rigid rules about the evidence that is acceptable. However, tribunals must apply the law. The law says nothing abut the framework. The tribunal must apply the same approach to evidence and proof that it uses in other cases. There is nothing inconsistent in that. The tribunal has the power to conduct an oral hearing and it has legal questioning and evaluating skills that the officers may not possess.

The appeal to the Commissioner

5. The appellant in this case is a housing benefit claimant. The respondent is his local authority, Plymouth City Council.
6. The case comes before me on appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Bano. The local authority does not support the appeal.

How the tribunal went wrong in law

7. I have decided that the tribunal went wrong in law. So, I do not need to refer to the facts in more detail than it necessary to identify the error and to give directions for the rehearing.
8. The tribunal began by pointing out the defects in the local authority's approach to the case. First, the authority had confused issues under regulations 6 and 7 of the Housing Benefit (General) Regulations 1987. Second, the authority had relied on a provision in regulation 7 that has been revoked. Those criticisms are set out in detail in the statement of the reasons for the tribunal's decision at page 63 of the papers. They are valid.
9. The tribunal then approached the case methodically. It first considered how regulation 6 applied. It accepted that the claimant was liable to make payments in respect of the dwelling. It then considered how regulation 7(1)(a) applied. It concluded that the agreement was not on a commercial basis. That was the correct approach to take and I have given directions for the rehearing accordingly.
10. However, the tribunal went wrong in applying that approach. In dealing with regulation 6, the tribunal referred to the 'various discrepancies in the evidence' as a result of which 'the exact terms and rent are not so clear', but held that nonetheless 'there is still an agreement and consideration.' Those discrepancies related to the rent payable, the start date and whether the claimant was a joint tenant or a co-tenant. The tribunal again referred to these matters when dealing with regulation 7(1)(a). In this context, the tribunal commented that it had 'got the impression that they were making it up as they went along.' That reasoning is not satisfactory. The tribunal's reasoning on regulation 7 casts doubt on whether it came to the correct conclusion on regulation 6. It should have investigated and resolved the uncertainties about the terms of the claimant's housing arrangements and then based its application of the law on the consistent factual foundation thereby established.

Summary

11. I allow the appeal and direct a rehearing.
12. I have set the tribunal's decision aside, because of the defects in its reasoning. My decision carries no implication that the tribunal should have come to any particular decision, whether favourable to the claimant or not. That is a matter for the tribunal at the rehearing.

Signed on original

Edward Jacobs Commissioner 4th December 2002