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 Sutton appeal tribunal under reference U/45/176/2002/00546, held on 25^th April 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 accordance with my directions in paragraphs 11 to 20.

The appeal to the Commissioner

5. This case concerns an application for housing benefit. The issue is whether the tenant is to be treated as not liable to make payments in respect of her dwelling under regulation 7(1)(a) and (l) of the Housing Benefit (General) Regulations 1987. The claimant is the respondent. The appellant is her local authority, Wandsworth Borough Council.
6. The case comes before me as an appeal to a Commissioner against the decision of the appeal tribunal brought by the local authority with my leave.

The history of the case

7. The dwelling in question is owned by the claimant's son and his wife. They originally occupied it. However, from 1991 it was shared by the claimant and others. At first, those others were students. Later, the claimant shared the property with her grandson. While there were others in the property, the claimant made no payments for her occupation, but she acted as caretaker. So far the facts are not contested.
8. The factual dispute arises over what happened when the claimant's grandson left in 1999. Her account to the tribunal was that there was at that time a verbal agreement that she would have to pay rent. This was later put into writing on a 'short tenancy' form expressed to be for an 'indefinite tenure' and backdated to 1^st October 1999. The rent was stated as £145 a week. No rent was ever collected and no attempt made to obtain possession from the claimant.
9. The local authority decided that the claimant was not entitled to housing benefit by virtue of regulation 7(1)(a) or (l) of the Housing Benefit (General) Regulations 1987. In other words, either the arrangement between the claimant and her son and daughter-in-law was not on a commercial basis or it was created to take advantage of the housing benefit scheme.
10. The claimant appealed against that decision to an appeal tribunal. She attended the hearing and gave evidence along with her son. The tribunal allowed the appeal. It decided that the claimant was not barred from entitlement to housing benefit under regulation 7, but left other issues of entitlement to the local authority. However, it decided that the claimant was liable to make payments only from 22^nd November 2000. That was the date when a form was signed to authorise direct payment of housing benefit to the landlord.

Did the appeal tribunal go wrong in law?

11. Yes, it did.
12. Whether or not a case falls within regulation 7(1)(a) or (l) requires careful and detailed consideration of a range of factors. As far as the record shows, the tribunal dealt with the case very shortly. The chairman's record of proceedings consists only of 13 lines. That is hardly indicative of a detailed investigation of the issues. The decision notice is fairly detailed, but is only ½ page long. The statement of the reasons for the tribunal's decision is contained on a single page. It goes beyond merely recording the tribunal's conclusions, but it does not show the necessary consideration of the relevant factors.
13. For the record, I am not persuaded by all of the detailed criticisms made in the local authority's application for leave. They take too literal a reading of what the chairman wrote in the statement. I am not persuaded that, whatever may appear from the way the statement is worded, the tribunal made all the alleged mistakes as a matter of substance.

Directions for rehearing

14. I direct the tribunal at the rehearing to proceed as follows.

Regulations 6 and 10

15. First, the tribunal must decide whether the claimant was liable to make payments in respect of the dwelling. If she was not, she is barred from entitlement to housing benefit by regulation 6. The liability need not arise from a written document. Nor need it arise under any particular legal form of relationship in respect of the dwelling, provided that the payment falls within the list in regulation 10(1).
16. The tribunal will have to consider the written agreement that is in the papers at pages 23 to 25. This may not be complete. I notice that there are few terms and no provision for termination, although clause 4 refers to 'the tenancy being determined in accordance with the terms of this agreement'. The tribunal must construe this document. It may create a weekly tenancy. Another possibility is that it is a tenancy at will. The tribunal must also determine whether the document is merely a sham, on which see my decision in CH/1618/2002.

Regulation 7

17. Second, if the claimant was liable to make payments, the tribunal must consider regulation 7(1).
18. As regards regulation 7(1)(a), the tribunal must follow and apply my decision in CH/0627/2002 on 'commercial basis'. If the tenancy agreement is not a sham and creates a tenancy at will, the tribunal must determine whether a tenancy of that sort is capable of existing on a commercial basis. I suspect that this is possible, but only in the most exceptional circumstances.
19. As regards regulation 7(1)(l), I refer the tribunal to the detailed notes to that provision in Housing Benefit and Council Tax Benefit Legislation 2001/2002 (pages 240 to 244).

Other issues relevant to entitlement

20. If the claimant is barred from entitlement by regulations 6 or 7, the tribunal need not consider any other issue. If the tribunal decides the issues under those regulations favourably to the claimant, it must consider whether to deal with other issues relevant to entitlement. I will not give an exhaustive list. I need mention only these: (a) whether the claimant had good cause for delaying in claiming housing benefit; (b) the calculation of the eligible rent. The claimant has not had the benefit of a local authority submission on those issues and so far has no notice that they may be considered. She is not professionally represented. If the tribunal decides to deal with all or some of these issues, it must act in accordance with the principles of natural justice and the claimant's Convention right to a fair hearing.
21. In so far as the tribunal does not deal with other issues relevant to entitlement, it must write its decision in a way that does not prejudice the local authority's right and duty to make decisions on those issues. Any such decision will carry the right of appeal to an appeal tribunal if the claimant is dissatisfied with it.

The local authority's application for leave to appeal

22. I draw the tribunal's attention to the local authority's application for leave (pages 65 to 68). It contains a useful and detailed statement of the local authority's analysis of this case. It contains points that the tribunal will have to consider, although it need not accept them.
23. I need to comment on one point that is made more than once in that application. The local authority refers to the tribunal's decision to accept the claimant's oral evidence. That submission reflects local authorities' reliance on documentary evidence in preference to unsupported oral statements. Tribunals operate in a different environment. They must take the same approach to evidence and proof in housing benefit cases as in any other case in their jurisdiction. There is, in principle, no objection to the tribunal accepting unsupported oral evidence. It must, though, assess the cogency of that evidence in the context of whether or not there is more independent evidence that support or contradicts the oral evidence of an interested party.

Summary

24. I allow the appeal and direct a rehearing in accordance with my directions.

Signed on original

Edward Jacobs Commissioner 22nd January 2003