UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Salisbury appeal tribunal, held on 5 November 2002 under reference U/03/202/2002/00043, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the local authority with the leave of a district chairman of tribunals. The claimant has commented on the appeal.
3. Case management directions were given by Mr Commissioner Levenson, but he has transferred the case to me for decision.
4. The case involves a sequence of decisions.

The cancellation of the original award

5. The claimant was in receipt of housing benefit and council tax benefit on the basis that he was also in receipt of income support. His entitlement to income support terminated from and including 6 August 2001. Based on that decision, the local authority 'cancelled' the award of housing benefit and council tax benefit. That was done in a decision notified by the local authority in a letter dated 19 October 2001 at page 5 of the papers.
6. I do wish that local authorities would not use the word 'cancelled'. It is also used by the Secretary of State in both the social security and the child support jurisdictions. There is no authority for the use of the word in the legislation. It almost inevitably causes confusion and uncertainty. It does not contribute to clarity either in thought or in the application of the legislation. It would be very much better if decisions were expressed in terms of the relevant legislation. Commissioners have been making this point for years. But to no avail. I do not expect my comments to fare any better.
7. Regulation 66 provides that housing benefit must be awarded for a benefit period. Regulation 67(1)(a) provides, in short, that the benefit period of an award comes to an end when the award of income support on which it is based ends. I am not sure whether the effect of regulation 67 is automatic or requires a formal decision. That issue can await for decision in an appropriate case. Even if no formal decision is needed, the local authority obviously has to take action to prevent further payment.
8. Regulations 57 and 58(1)(a) of the Council Tax Benefit (General) Regulations 1992 make equivalent provision for council tax benefit.
9. So, language apart, the local authority was correct that the claimant was no longer entitled to housing benefit and council tax benefit under his original award. The tribunal was correct in law to confirm these decisions.

The resulting overpayment and excess benefit payment

10. I will assume for the moment that the local authority gave two decisions on the housing benefit overpayment and the excess council tax benefit payment. In fact, the papers contain only the former: page 29. However, the terms of the claimant's correspondence was sufficient to cover both, if both were made. And the local authority's letter at page 58 shows that that was how it interpreted that correspondence.
11. The tribunal confirmed the housing benefit overpayment decision. The terms in which it did so are unimpeachable. It did not go wrong in law in respect of this decision.
12. However, the local authority is dissatisfied with the way in which the tribunal dealt with the excess council tax benefit payment. The tribunal allowed the claimant's appeal in respect of this decision on the ground that there was no evidence that proper notification had been given under paragraph 16 of Schedule 6 to the Council Tax Benefit (General) Regulations 1992. It noted that the claimant denied receiving any notification. The chairman also recorded that the local authority had agreed that that decision was appropriate at the hearing. I cannot see that recorded in the record of proceedings, but I only doubt it because the presenting officer is the same person who wrote the application for leave disputing the tribunal's decision on this point.
13. The local authority's dissatisfaction is set out in detail on pages 94 and 95. I have to say that I find some of the distinctions drawn in that letter incomprehensible, particularly in the paragraph that straddles pages 94 and 95. The essence of the argument, in so far as I can relate it to the law that I have to apply, is either that the claimant did not appeal against that decision or that the tribunal should have allowed the local authority a chance to provide evidence on it.
14. I approach the appeal in respect of the excess payment in this way.
15. First, did the local authority make a decision? It says that it did. So, it cannot deny that one was made.
16. Second, was there an appeal against this decision? That is a matter for the tribunal. The local authority's grounds of appeal suggest in places that this is something for the local authority to determine. It is not. It is for the tribunal to decide what decisions are under appeal before it. The claimant believed that this was the subject of the appeal. The local authority did not argue before the tribunal that it was not part of the appeal. The grounds of appeal say that this was clarified in a letter to the claimant on 28 April. I cannot find that letter in the papers. It was certainly not before the tribunal, but the letter at page 58 (12 April) was. And that letter lumped together the overpayment and the excess benefit payment. On the case as presented by the local authority and on the evidence produced before it, the tribunal was entitled to accept that the appeal covered the excess benefit payment.
17. Third, did the claimant receive notification? He says he did not. The tribunal was entitled to accept that evidence. It was entitled to do that, even if the presenting officer did not effectively concede the issue as the chairman recorded in the statement. From that, it is appropriate to infer that it was never sent, especially as the local authority produced no evidence that it had been sent.
18. Fourth, should the tribunal have adjourned for the local authority to produce evidence? The local authority was represented at the hearing. No adjournment was requested. I see no reason why in those circumstances the tribunal can be faulted for dealing with the case as it stood.
19. So, the tribunal did not go wrong in law on this issue.
20. Frankly, I cannot understand why the local authority has challenged this on appeal to a Commissioner. It would have been quicker, and surely cheaper, to issue the notification that was necessary in order to remedy the defect identified by the tribunal. The decision could then have been implemented by recovery from the claimant. That course is now open to the local authority, if it has not already taken it.

The first new claim

21. The claimant made new claims for housing benefit. The first was received on 25 October 2001 (pages 6 to 25) and refused on 2 November 2001 (page 26). The claimant told the tribunal at the hearing that he did not want to pursue the appeal against this decision. However, the tribunal did comment on this decision and the local authority has taken issue with those comments.
22. The comment is that the decision was that the claimant was treated as possessing capital that he had loaned to his wife under regulation 43 of the Housing Benefit (General) Regulations 1987. The claimant has apparently now relied on that comment to support his argument that the diminishing notional capital rule should apply. That rule is governed by regulation 43A. It applies if a claimant is treated as possessing capital under regulation 43(1). The local authority's decision on this claim is clear. It states that the claim was refused under regulation 43. See the opening words of the third paragraph of the letter of notification. This is beyond dispute.
23. The local authority now argues that this claim was refused on the basis of actual capital and that the notional capital issue arose later: see page 81 and 101. That is not correct. The wording of the letter of notification in November 2001 is clear. It may be that that notification did not correctly state what was intended. It may be that the local authority now realises that the decision should have been based on a different provision. I do not know whether either of those is correct. All I do know, and all that matters on this appeal, is that the comment of the chairman was correct on the basis of the decision as notified to the claimant.
24. I suspect that this is one of the respects in which the officers who have dealt with this case have not properly understood the law. The third paragraph of the notification letter refers to regulation 43. It goes on to tell the claimant that he is treated as possessing an asset even though he does not have it. That is correct. It then goes on to state that the claimant 'is still the legal owner of the money' loaned to his wife. That is wrong. If the claimant was still the owner, he would have actual capital and regulation 43 would not apply. If he was not still the owner, the notional capital rule under regulation 43 could apply. The letter confuses the deeming effect of regulation 43 with the reality of legal ownership. It may be that the confusion in this paragraph reflects the confusion of thought in the minds of those dealing with this claim.
25. My only concern is whether the tribunal went wrong in law in dealing with this claim. As the claimant did not pursue it, the tribunal was entitled to confirm the refusal of the claim. Its comments were by the way and not a part of its decision. But they were correct. If the decision was wrongly made and the error has an ongoing effect, the local authority will have to change it. In fact, I do not see that it has an ongoing effect. When the issue arose again in respect of a later claim, the local authority was entitled to come to a different decision on the facts or to decide that a different regulation applied. So, given the amount involved and the time frame, I cannot see that the local authority's mistake (if indeed it was a mistake) has any significance for any later claims. It is correct that paragraph 11 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 provides that decisions are 'final'. But a decision relates only to a claim. It may be taken into account when deciding a later claim. But it is not conclusive on claims in respect of different periods.

Conclusion

26. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 12 November 2003