UK Social Security and Child Support Commissioners' Decisions

 


[2004] UKSSCSC CIS_995_2004 (17 November 2004)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is disallowed. The decision of the Exeter appeal tribunal dated 5 December 2003 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. An oral hearing of the claimant's appeal to the Commissioner was held on 10 November 2004. The claimant was not able to attend, owing to the distance he would have had to travel and the state of his health. However, he has put his case very clearly and consistently in writing, including in his letter dated 5 November 2004, with its appendix. I am satisfied that I have been able to take into account all the points that could be made for the claimant. At the oral hearing, the Secretary of State for Work and Pensions was represented by Miss Rosemarie Topping of the Office of the Solicitor to the Department for Work and Pensions. The Board of Inland Revenue (the Board) was represented by Mr Zaglul Islam of the Board's Solicitor's Office. I am grateful to both representatives for their assistance.

The background

3. The circumstances were set out very clearly by the sole member of the appeal tribunal in the statement of reasons. Although I took the opportunity of directing the production of further evidence by the Board, I must concentrate first on the evidence which was before the appeal tribunal and its own findings of fact in order to ask if it made an error of law.
4. The claimant was in early 2003 in receipt of income support on the grounds of incapacity for work, for himself, his wife and their son. Although his applicable amount included several disability and carer premiums and housing costs for mortgage interest, he and his wife both received incapacity benefit and occupational pensions, so that there was a substantial amount of income to be set off against the substantial applicable amount. On 10 January 2003, the claimant completed on the Inland Revenue website an on-line application form for child tax credit and transmitted the form to the Inland Revenue. He printed off a number of the pages of the site and the form as they appeared during the process. The Board has been unable to supply to me copies of the form actually transmitted, but did supply (shortly before the oral hearing) copies of a demonstration version of the application part of the website, showing what was said to be in operation in January 2003. Mr Islam told me that it was because of continuing efforts to get copies of the actual pages that the Board did not meet the time-limit of 21 days before the oral hearing. I accept that explanation and his apology, although In my view further efforts should have been made to get the relevant documents to me and, in particular, to the claimant earlier. I shall come back later to what is shown on the pages of the demonstration version.
5. What the appeal tribunal had were the pages printed out by the claimant on 10 January 2003, all from the "Apply now" section of the website. The links on those pages show that other sections of the site, apart from the homepage, covered "Tax credits", "Do I qualify?" and "Open saved form". Page 11 of the papers shows a general page giving examples of the kind of information which might be needed to complete the application form, with an instruction:

"For further information on how to use the application form section of this site click help on completing the application form".

On pages 13 to 16 is a summary of the details given on the application form, ie personal details of the claimant, his wife and their son and bank details. The first sentence on pages 13 and 14 is "If any of these details have changed since you sent us this application form, please contact the Inland Revenue help desk". Although that suggests that the form had already been submitted, I think that those pages must have appeared as a summary before the form was submitted. That is because an option was to delete the form and because that is the sequence shown on the demonstration version produced by the Board. On page 12 of the papers is a copy of what evidently appeared on the screen after the submission of the application form:

"Your application form has been submitted. You will receive an award or rejection by post for you (and your partner) to sign and return to the Inland Revenue to complete the application process.

In January we will contact you to advise you of whether your application has been successful. Unfortunately we are not able to advise you of whether your award has been successful until January. If your circumstances change in the meantime, please contact the Inland Revenue on [...].

If you would like to view a copy of your application form online, you can do so by using the reference number shown below. To view your application form, go to the homepage and click `Open saved form', you will need to enter your reference number together with your date of birth.

Reference number for submitted form: [...]

You will only be able to view your submitted application form for 30 days."

6. The claimant also printed off a number of other documents on 10 January 2003 which are in the papers, including a Child Poverty Action Group tax credits fact sheet dated September 2002 (pages 18 and 19). Methods mentioned under the heading "How to claim" were by a claim form available at Inland Revenue Enquiry Centres or the telephone helpline, on-line via the Inland Revenue website and or at jobcentre plus offices.
7. In March 2003 the claimant received the letter TC602 from the Tax Credit Office dated 21 March 2003 which is at pages 9 to 10A. In the top left-hand corner of the first page was the instruction "Check this notice. Then sign it and return it to us." In a large box in the bottom half of the left-hand side of that page was the heading "TAX CREDITS AWARD from 06/04/2003 to 05/04/2004" and a summary of an award of child tax credit of £1991.04, to be paid to the claimant's wife. On the right-hand side of the first page was the following:

"WHY WE ARE WRITING TO YOU

Thank you for your application for tax credit. This notice has been sent to you to confirm the information you gave us when you applied.

WHAT TO DO NOW

Please check that information in this notice is correct. If the details are correct, sign the Declaration and return it to us by 20/04/2003. If you do not, the award will be withdrawn and any payments already made will have to be repaid to us.

If the details are wrong, phone the Helpline because the amount of your award may be too low or too high."

The following two pages contained details of the benefit income of the claimant and his wife, the statement that the first payment of £161.04 would be paid into the relevant bank account of 29 April 2004, followed by payment four-weekly and an instruction about changes of circumstances to be disclosed. The final page contained this declaration with spaces for signature by the claimant and his wife and a warning about liability for financial penalties or prosecution for a false declaration:

"I declare that the information given on this form is correct and complete to the best of my knowledge and belief."

Finally, there was a notice of the right to appeal.

8. When he received the TC602 letter, the claimant made an enquiry to the Inland Revenue's Better Off Calculation Team and was advised that he would be better off by retaining entitlement to income support, because of the help with housing costs and the consequent entitlement to 100% council tax benefit. In reliance on that advice, the claimant decided not to sign and return the TC602 notice, and did not do so. He understood that he and his wife would then not receive any payments of child tax credit. It appears that payment in fact started on 29 April 2003 and continued as set out in the TC602 letter.
9. However, notice of the award of child tax credit was sent by the Inland Revenue to the income support and received on 28 March 2003. On the same day the decision was given that the claimant was not entitled to income support from 9 April 2003 because his income would exceed his applicable amount. The calculation at page 1G shows how the addition of £38.08 child tax credit to the claimant's income took his income some £20 over his applicable amount.

The appeal to the appeal tribunal

10. The claimant appealed against that decision. His case effectively was that he completed the online application form to see whether he and his wife would be entitled to child tax credit and would be better off receiving it. In his subsequent letter of 18 July 2003 he said that he deliberately did not make a proper and complete claim and that his submission of the form online was on the understanding that any award made would not be effective until he had signed and returned the award notice by the due date. There were unsuccessful attempts by staff of the Department for Work and Pensions to obtain from the Inland Revenue information on what authorised the making of awards without a signed claim and somewhat inconclusive guidance was received on the authority for the requirement in the TC602 letter to sign a declaration and whether a failure to do so would automatically result in the withdrawal of an award.
11. There was a hearing before an appeal tribunal on 1 September 2003, which directed some further submissions (including a submission on the consequences of regulation 3 of the Tax Credits (Claims and Notifications) Regulations 2002 allowing electronic claims) and for the Inland Revenue to supply information. There was what I am afraid was a deeply confused response dated 6 October 2003 from an appeals submission writer in the Tax Credit Office. The response did, though, state clearly that the Board had no intention of withdrawing or terminating the claimant's payments of child tax credit, as that could only be done if the rate of entitlement changed or entitlement ceased. Nor could the claim for child tax credit be withdrawn once an award had been made. The invitation for a representative of the Inland Revenue to attend the next hearing and to explain its procedure was politely but unhelpfully declined.
12. The resumed hearing took place on 5 December 2003. The appeal tribunal disallowed the claimant's appeal and confirmed the decision issued on 28 March 2003. The decision notice continued:

"Although the Board of Inland Revenue are in breach of section 14(2) of the Tax Credits Act 2002 because they have made a decision on [the claimant's] claim without waiting for his response to their notice under sec 14(2) (see the first paragraph of their submissions on page 30), this does not assist [the claimant]. This is because regulation 7 of the Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 SI 2003/455 require the Department of Work and Pensions to treat `his income as including an amount equivalent to the amount of child tax credit to which he or his partner is entitled'."

In the statement of reasons, the appeal tribunal went into more detail on section 14(2), but concluded that the breach in failing to postpone making an award until the claimant had replied to the TC602 letter was not a breach of mandatory requirement. It did not render the award of child tax credit invalid. Then it was said that the Secretary of State had no option but to cancel the award under regulation 7 of the Consequential Amendments Regulations, which had the effect of treating a claimant as having child tax credit if entitled to it, whether or not it was actually received.

The appeal to the Commissioner

13. The claimant now appeals against that decision with leave granted by a district chairman. His argument was that he did not claim child tax credit, so that no award could properly have been made, and, even if it was properly made, regulation 7 of the Consequential Amendments Regulations did not apply, because it was dependent on a claim for a tax credit having been made. I shall not go through the various written submissions made. Suffice it to say that I directed that the Board was to be an additional respondent to the claimant's appeal and that, after the round of written submissions, I directed an oral hearing. The appeal was not supported on behalf of the Secretary of State, although it was accepted that the appeal tribunal had gone wrong in its treatment of the law.

Section 14(2) of the Tax Credits Act 2002

14. Section 14(1) provides that on a claim for a tax credit the Board must decide whether to make an award of the tax credit and, if so, at what rate. I interpose that it is only after the end of each tax year, and after giving a notice to the claimant to confirm the relevant circumstances, that the Board is required to decide whether a claimant was entitled to a tax credit, and if so of what amount, for the year in question (see sections 17 and 18 in particular). Section 14(2) provides:

"(2) Before making their decision the Board may by notice--

(a) require the person, or either or both of the persons, by whom the claim is made to provide information or evidence which the Board consider they may need for making their decision, or

(b) require any person of a prescribed description to provide any information or evidence of a prescribed description which the Board consider they may need for that purpose,

by the date specified in the notice."

15. The appeal tribunal was misled by the suggestions made on behalf of the Board that the TC602 letter was issued in pursuance of section 14(2). As is clear from the terms of section 14(2), its requirements can only be imposed before the Board makes a decision on a claim. Therefore, it could not have provided authority for the issue of the letter of 21 March 2003, as the Board had already decided to award child tax credit to the claimant and his wife. And section 14(2) merely gives the Board a power. If the Board decides that it can make an award on the information and evidence it has, it can do so. There is then no question of a breach of section 14(2) even if at the time of notifying the award it requires some confirmation of the circumstances from the claimant. There are other powers relevant to such a requirement (see below). Thus, the appeal tribunal's approach to section 14(2) was wrong in law. But its conclusion that section 14(2) did not affect the validity of the award of child tax credit to the claimant or the way in which the income support legislation applied to the circumstances was correct in law. Any error of law was therefore not material to the appeal tribunal's decision.

The authority for the requirement to sign the declaration in letter TC602

16. At the oral hearing, Mr Islam endorsed this part of the written submission of 4 November 2004 on behalf of the Board:

"I submit that there is no statutory requirement for a claimant to sign the award notice. I further submit that there is no penalty for a failure to sign the award notice, nor any automatic loss of entitlement. However, where a claimant refuses to sign an award notice a question might arise whether the claimant is entitled to the award of tax credit that has been made. The Board may consider taking action in accordance with section 16(1) of the Tax Credits Act 2002 (`the Act') but only if it has reasonable grounds for believing that the claimant is not entitled. In the present case those grounds did not and do not exist. The claimant has at no point indicated that the award of tax credits is based on wrong information, nor is there any evidence to indicate that the claim is fraudulent. The Board is satisfied that a genuine claim has been properly made and that an award in due. On that basis the Board considers that it has no authority to revisit the award either under section 16 of the Act or any other section of the Act, and the award stands."

17. I deal separately below with the central question of whether a claim for child tax credit was made, but otherwise I think that that submission is right. As acknowledged by Mr Rogers, an official accompanying Mr Islam at the oral hearing, it would normally be unsafe to regard a mere failure to sign and return a TC602 letter as giving reasonable grounds for believing that a tax credit had been awarded at the wrong rate or for the wrong period or that the claimant had either ceased to be or never had been entitled, so as to allow termination or amendment under section 16(1). It might not even properly ground a belief allowing the issue of a notice under section 16(3) requiring the giving of information or evidence (see the condition in section 16(2)). However, it could justify the making of further enquiries by the Inland Revenue, for which no specific statutory powers are necessary, and which might eventually lead to an amendment or termination of an award under section 16(1). The sanction threatened in the letter, and in particular the suggestion of an automatic withdrawal of an award on a failure to sign and return it by a specified date, was illusory. It did not, according to Mr Rogers, represent the Board's practice at the time. It was no doubt sensible, especially where there had been some gap between the completion of a claim form and the start date of payment, for the Board to ask for confirmation that circumstances had not changed or for a statement of changes. A failure by a claimant to reply might generate further enquiries or trigger a process under section 16, but could not on its own justify the withdrawal of an award.
18. The TC602 letter in the form used in the present case is therefore a confusing and misleading document. It combines what appears to be a straightforward notification of an award with a statement that the notice is to confirm information given on an application, topped by a wholly inaccurate statement of the consequences of not returning the notice. I was pleased to learn from Mr Rogers at the oral hearing that he would be checking on the current form of the TC602 in the light of what has been said above.
19. The upshot in the present case is that, if a valid award of child tax credit was made as notified in the TC602 letter, the failure by the claimant to sign and return the letter by 20 April 2003 did not have any effect on the existence of that award.

Did the claimant and his wife make a claim for child tax credit?

20. This question was at the heart of the claimant's case. His argument was that he had only made a preliminary application, which would not be completed until he signed the TC602 letter, so that the Board had no authority to make an award of child tax credit. Yet the appeal tribunal did not record any conclusion on the question. It appears to have assumed that a claim had been made, which led to a valid award (having needlessly considered the effect of section 14(2) of the Tax Credits Act 2002), and then dealt with the arguments about the consequences of the award for the purposes of income support. It could therefore be said that the appeal tribunal's reasons were inadequate in failing to deal with a specific and central contention made by the claimant. However, I do not set its decision aside on that ground as I am satisfied that the conclusion that a claim for child tax credit had been made was the only one legally open to it.
21. First, the legislation clearly authorises the making of a claim by electronic communications. Section 4(1)(a) of the Tax Credits Act 2002 authorises the making of regulations requiring a claim to be made in a prescribed manner. Regulation 5(2) of the Tax Credits (Claims and Notifications) Regulations 2002 prescribes that claims must be made either "(a) in writing on a form approved or authorised by the Board for the purpose of the claim" or "(b) in such other manner as the Board may accept as sufficient in the circumstances of the particular case". Regulation 3(1) and (2) of those Regulations, as in force in January 2003 (there were amendments with effect from 6 April 2003), provided:

"(1) In these Regulations "writing" includes writing produced by electronic communications that are approved by directions issued by or on behalf of the Board.

(2) If a claim which is required by these Regulations to be made to an appropriate office is made in writing produced by electronic communications, it shall be treated for the purposes of these Regulations as having been made to, and received by, the appropriate office on the date on which it is recorded on an official computer system."

By regulation 3(4) "electronic communications" has the same meaning as in section 132(10) of the Finance Act 1999 and an "official computer system" means a computer system maintained by or on behalf of the Board to send, receive, process or store information. Reference to section 132(10) of the Finance Act 1999 sends one on a complicated chain of further references, not helped by the fact that the definition there has been amended from July 2003 by the Communications Act 2003. But I do not need to pursue all the difficulties as the definition in section 132(10) is not an exclusive one, merely providing that "electronic communications" includes specified kinds of communication. I am satisfied that, regardless of any extension created by that definition, the completion and transmission of an on-line form would produce writing by means of electronic communications.

22. I do not have any evidence of directions by the Board approving the making of on-line claims in January 2003, but I need not delay my decision to obtain such evidence. Even if there were no directions at the relevant time, so that regulation 3 of the Claims and Notifications Regulations could not operate, and assuming that the submission of the on-line form would not come within the ordinary meaning of "writing" as set out in the Schedule to the Interpretation Act 1978, there could still be a claim made in the prescribed manner. Under regulation 5(2)(b), a claim made otherwise than in writing on the authorised form can be accepted if the Board accepts that it has been made in sufficient manner. For those purposes, a claim does not have to be in writing or, indeed, in any particular form at all. It is evident from the making of the award notified on 21 March 2003 that the Board had accepted the claim received on 10 January 2003 (assuming that it was a claim) as having been made in the prescribed manner. I agree with Miss Topping for the Secretary of State that in such circumstances it is not for the Secretary of State, an appeal tribunal or a Commissioner to go behind the Board's acceptance and enquire whether or not the claim had been made in the prescribed manner. Given the width of the powers in regulation 5(2), it must for the purposes of the present case be accepted that, if a claim was made on 10 January 2003, it was made in the prescribed manner.
23. Miss Topping went further and submitted that it was not for the Secretary of State, an appeal tribunal or a Commissioner to go behind the Board's determination that a claim had been made, which was implicit in its award of child tax credit to the claimant and his wife. That raises a very difficult issue that I do not have to decide. As mentioned above, I have concluded that a claim, and consequently a valid award, was made, so that even if I have power to examine the question, it would not help the claimant.
24. First, I note that a claim in advance of 6 April 2003 was expressly authorised by regulation 9 of the Claims and Notifications Regulations. As the claimant was living with his wife, there would have had to be a joint claim in accordance with section 3(1) and (3)(a) of the Tax Credits Act 2002. Section 3(1) makes entitlement to a tax credit depend on the making of a claim for it. The claimant's case is simply that he did not do anything that amounted to a claim.
25. The problem for his case is this. Although there were confusing and misleading documents produced, they would not have come to the claimant's attention until he had already submitted the on-line application form. It is evident from the details of the application on pages 13 to 16 (which pages I have concluded would have appeared on screen before the submission of the application form) that in the application form itself the claimant would have had to supply personal details of himself and his wife, including national insurance numbers, income and entitlement to social security benefits, details of the bank account into which any payment was to be made, and to have made a choice between payment weekly and four-weekly. It is unfortunate that the website used the terms of "application" and "apply now", as was the case for the old working families' tax credit and disabled persons' tax credit, when the legislation on child tax credit and working tax credit used the terms of "claim". However, in my view it was plain from the terms and lay out of the website, on which there were other parts for general enquiries about qualification and which allowed a completed form to be saved rather than submitted immediately, that when the claimant submitted the application form by clicking the relevant instruction he was making a claim for child tax credit, in the sense of asking, having given all the required information, for a decision to be made on whether the credit was to be awarded or not. The website, and the CPAG fact sheet, treated on-line application as one way of making a claim. Although there was no way that the claimant could have signed anything, in my view the sending of the application form after giving all the details mentioned of himself and his wife was a sufficient adoption of the form as his and his wife's to be a joint claim. A manual signature is only one method of adopting a document as one's own. As the claimant is obviously an intelligent and reasonable person, I conclude that he must have been aware that he was making a claim for himself and his wife at the time.
26. I have reached that conclusion without relying (in any way contrary to the claimant's case) on the demonstration version of the website produced by the Board. The claimant did not print out any screen pages setting out declarations or the page that allowed the form actually to be sent. There must have been such a page. The page in the demonstration version contains the sentence "To complete your application you must now click `Send form'". If the pages actually seen by the claimant had contained such a sentence or similar declarations to those in the demonstration version, that would strengthen my conclusion above. But I have reached a conclusion without having to decide on that.
27. The claimant has placed great reliance on the contents of page 12. I accept that those contents are ambiguous. They refer to the award or rejection that would be made and sent by post (implying that a claim had been made), but in the same sentence refer to a necessity to sign and return the award "to complete the application process". I am not sure that the reference to completion of the application process can on its own carry the weight of a conclusion that only a preliminary and partial claim had so far been made, but in any event the page did not appear until after the claimant had done what can only be regarded as making a claim. It cannot show that what he had done previously was not what it must have seemed to any reasonable person at the time. Similarly, the further ambiguities in the TC602 letter cannot alter what the claimant did when he submitted the claim.
28. If the claimant and his wife had communicated a withdrawal of the claim to the Board at some time before the decision notified on 21 March 2003 was made, it seems to me on general principle that there would no longer have been a claim in existence on which an award could properly have been based. Although regulation 5(7) of the Claims and Notifications Regulations only expressly gives claimants a power to amend a claim by notice before a decision is notified, that does not in my judgment indicate that a claim cannot be withdrawn in that period. No statutory support is necessary for a withdrawal on an all or nothing basis, whereas some specific statutory power is needed to allow a claim to continue in existence in an amended form. However, the claimant and his wife (possibly misled by the information on page 12) took no steps to withdraw their claim before 21 March 2003. The enquiries to the Better Off Calculation Unit came after notification of the award. I agree that once a decision has been made on a claim it cannot be withdrawn, at least where the award is for a definite period (see Commissioner's decisions R(U) 2/79 and R(U) 7/83). And in any event, if the claimant purported to withdraw the claim for child tax credit after 21 March 2003, that would have come after the last date that the appeal tribunal was able to consider, the date of the decision under appeal. Therefore, I am satisfied that the only possible conclusion on the evidence before the appeal tribunal was that a claim for child tax credit was properly before the Board when it made the decision notified on 21 March 2003, so that there was nothing to undermine the validity of the award made in that decision.

The effect on the claimant's entitlement to income support

29. Payments labelled child tax credit were made to the claimant's wife, the first payment being made on 29 April 2003, with a future pattern of four-weekly payment. It might well be that, in line with the written submission to the appeal tribunal, those payments would have to be treated as income of the claimant under the ordinary income support rules even if they did not represent validly awarded child tax credit. That might be the case at least unless and until a clear obligation to repay was imposed. However, the ordinary income support rules would not appear to support a decision that the claimant ceased to be entitled to income support from 9 April 2003, rather than from the first day of the benefit week in which the first payment was due to be made. That is an additional reason for considering the special provision made for the interaction of child tax credit and income support from 6 April 2003.
30. Regulation 1(2) of the Consequential Amendment Regulations provides:

"(2) Subject to paragraph (5), in a case where a claimant for income support--

(a) has a child or young person who is a member of his family for the purposes of his claim for income support, and

(b) is awarded, or his partner is awarded, a child tax credit for a period beginning before 6th April 2004,

regulation 7 shall have effect from the first day of the first benefit week to commence for that claimant on or after the day from which that award of child tax credit begins and regulation 2 and Schedule 1 shall have effect from the first day of the first benefit week to commence for that claimant on or after 6th April 2004."

Regulation 1(5) does not affect the present case. Regulation 7(1) and (3) provided when first made (there was an amendment with effect from 8 August 2003):

"(1) In the case of a claimant for income support who makes a claim, or whose partner makes a claim, for a child tax credit, the Secretary of State shall treat the claimant's income as including an amount equivalent to the amount of child tax credit to which he, or his partner, is entitled for the period specified in paragraph (3).

(3) For the purposes of paragraphs (1) and (2), the specified period begins on the first day of the first benefit week to commence for that claimant on or after 7th April 2003, or the date the award of child tax credit begins if later, and ends on the day before the first day of the first benefit week to commence for that claimant on or after 6th April 2004."

Paragraph (2) applies a special rule where the claimant or partner is aged 60 or over, which is not relevant in the present case.

31. There are several problems in working out the meaning of regulation 7(1), some of which I have to grapple with in the other case (CIS/1064/2004) heard at the same time as the present one. However, for the purposes of the present case, I see no difficulty in interpreting regulation 7(1) as deeming a claimant's income to include the amount equivalent to that contained in the operative award of child tax credit, even though strictly the question of entitlement for the tax year 2003/2004 is not decided by the Board until after the end of that year. There is no dispute about the amount of the award made or its calculation. I have decided above that the appeal tribunal could only properly have concluded that the claimant and his wife claimed child tax credit and were validly awarded it. I therefore do not need to go into Miss Topping's submission that under regulation 7(1) it has to be accepted that there was a claim and an award if the Board has made what it considers is an award of child tax credit on what it considers is a claim. Then the important effect of regulation 7(1) is to deem the claimant's income to include the equivalent of the amount of child tax credit awarded from the beginning of the first benefit week after the start of the award period. Accordingly, the claimant here was to be treated as receiving the additional income of £38.08 per week from and including 9 April 2003, whatever the ordinary income support rules laid down. There is no dispute that, if that income was properly to be taken into account for income support purposes, the claimant's income exceeded his applicable amount and he was no longer entitled to income support.
32. The Secretary of State's decision dated 28 March 2003 should have expressly identified a ground of supersession of the existing decision awarding the claimant income support, rather than simply stating that the claimant was not entitled from and including 9 April 2003. However, a ground obviously existed on 28 March 2003 justifying a supersession with effect from 9 April 2003. There had been a relevant change of circumstances since the last operative decision on income support (the award of child tax credit) or more likely an anticipation of a relevant change of circumstances (the coming into force of regulation 7 of the Consequential Amendment Regulations and the deeming of the receipt of income from 9 April 2003). Therefore, the failure of the appeal tribunal to deal with the issue of supersession is not a reason to set aside its decision.

Natural justice

33. It was also far from ideal that regulation 7 of the Consequential Amendment Regulations seems to have been mentioned for the first time by the officer representing the Secretary of State at the hearing on 5 December 2003, not having been mentioned in any of the prior written submissions on behalf of the Secretary of State or the Board. The claimant did not attend the hearing on 5 December 2003, although he had attended the earlier hearing on 1 September 2003 that was adjourned with directions. It is plainly arguable that the claimant was not given a fair opportunity of dealing with the point on the effect of the Consequential Amendment Regulations and that there was therefore a breach of the principles of natural justice. However, it would be an empty technicality for me now to set aside the appeal tribunal's decision on that ground, only to substitute a decision to the same effect.

Conclusion

34. For the reasons given above, although there were legal defects in the appeal tribunal's reasoning and in its procedure, its actual decision was the only one that could properly have been given in accordance with the law on the evidence before it. If I were substituting a decision it would be to the same effect. I understand, I hope, the indignation that the claimant feels about the way that he has been treated. He may have remedies available through other avenues on the basis of failures of good administration. However, on the issues of law before me, my conclusions are against him. Accordingly, I dismiss the claimant's appeal to the Commissioner.

(Signed) J Mesher

Commissioner

Date: 17 November 2004

Corrected on: 1 December 2004