UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CH_4004_2004 (18 March 2005)

CH 4004 2004

Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of paragraph 8(5) of Schedule 7 to the Child Support Pensions and Social Security Act 2000 I set aside the decisions of the Fox Court (London) tribunal of 19^th April 2004 (reference U/42/165/2003/01150). I substitute my own decisions. These are to the effect that, for the period 17^th March 2003 to 26^th May 2003 or thereabouts, the claimant is entitled to housing benefit and council tax benefit without any non-dependant deductions.
2. In some of the preliminary directions on this matter there have been errors of detail, for which I apologise, but they do not seem to have caused any confusion.
3. I held an oral hearing of this application on 17^th March 2004. The claimant attended in person and was represented by Mr Batten from the Centre 70 Advice Centre. The housing authority ("the authority") was represented by Mr Iyekekekpolar. I am grateful to all of them for their assistance.

Background and Procedure

4. The claimant was born on 18^th July 1958 and since about 1985 has lived in a home rented from the authority. She lives as a single parent with her son who was born on 8^th April 1987. There was some difficulty with her entitlement to income support when her son reached the age of 16, but that was resolved and it is not disputed that during the relevant period she was entitled to and in receipt of income support. At some stage housing benefit and council tax benefit were awarded but there is no awarding decision in the papers and Mr Iyekekekpolar could not produce a copy to me.
5. A (probably renewal) claim for these benefits was made on 8^th April 2003. On the claim form the claimant indicated that she was waiting to hear about a claim for disability living allowance ("DLA") although she could provide no proof of this (see page 17 of the bundle of documents before me).
6. As a result of further inquiries made by the authority the claimant stated (pages 38 and 42) that a cousin, whose date of birth is 27^th November 1959, stayed with her for the period 14^th March 2003 to 23^rd May 2003 "when he left to go into private accommodation as a tenant". The cousin had been deported from the USA:

"He was homeless and penniless, and was sleeping on my sofa. He was not 'normally living with me'. He had no money and no income and was therefore unable to pay me any money. I am a lone parent and also very sick on income support, however I could not allow my cousin to sleep out on the streets nor let him starve. I simply allowed him to stay at my flat throughout his homelessness while his applications for a national insurance number and jobseekers allowance came through. When they did, he was able to rent a private room and obtain [benefits]. He left … This was an exceptional situation …".

7. It is agreed that on 21^st July 2003 the authority decided that a non-dependant deduction of £7.40 weekly should be applied to the claimant's housing benefit and that a non-dependant deduction of £2.00 weekly should be applied to her council tax benefit. It appears that these decisions were supersessions of the decisions to make existing awards of benefit, but again there are no copies of these decisions in the papers and Mr Iyekekekpolar could not produce any copy to me. The papers do not even refer to council tax benefit except in the decision of the tribunal. This standard of adjudication records and appeal preparation is simply not good enough. Apart from any action that might be taken by any other body, tribunals could not be blamed for drawing adverse inferences in any case where a local authority simply does not provide adequate documentation.
8. On 20^th October 2003 the claimant appealed to the tribunal against these decisions. The tribunal considered the matter on 19^th April 2004 The claimant attended the hearing together with a person, possibly a social worker, from a hospital. Mr Iyekekekpolar was also at that hearing and told me that the claimant walked out of the room during the hearing. The claimant told me that she had explained her state of health to the tribunal, told the tribunal that she was not coping mentally with the hearing and was too upset to continue. It seems that the hearing continued in her absence but in the presence of the person from the hospital.
9. The tribunal's record of proceedings makes no mention of any of this. Although that might not in itself amount to an error of law, it is certainly poor practice to omit such information. In fact the record is surprisingly brief and reads as follows:

"Appellant attended. Council Rep: explained that a deduction shall be made for a non-dependant who is residing with appellant. [Appellant] says that she has had problems receiving mail which goes to upstairs maisonette in error.

[The appellant] explained that [the cousin] was living with her – he was homeless, not earning or on benefit.

Chairman explained the law Regulation 63(1)(b) Housing Benefit (General) Regulations and that no account could be taken of [the appellants] personal circumstances."

I have emphasised the last part of this record for two reasons. The first is that it is at this point that, according to Mr Iyekekekpolar, the claimant walked out. The second is that, as a matter of law, the statement is simply wrong, as I explain below.

10. The tribunal confirmed the decisions of the local authority. Unfortunately, the claimant applied very late (on 20^th October 2004) for leave to appeal to the Commissioner against those decisions, and for a full statement of the tribunal's findings and reasons, and the chairman refused to issue a statement. This meant that in practice the application for leave to appeal was rejected. The claimant renewed her applications to the Commissioner and on 13^th December 2004 I accepted the applications, waived the irregularity of the absence of a full statement, and gave leave to appeal to the Commissioner against the decisions of the tribunal. This was because of the claimant's state of health and because I felt that even without a full statement it was apparent from the record of proceedings that the decision was probably wrong in law. On 26^th January 2005, at the request of the authority, I directed that there be an oral hearing of the appeal.
11. In her applications of 20^th October 2004, made on her behalf by Centre 70, it was disclosed for the first time in any of these proceedings that on 24^th February 2004 (nearly 2 months before the tribunal hearing) the claimant had been awarded lowest rate care component of DLA for the period 5^th March 2003 to 4^th March 2005. This included the period during which the non-dependant deductions had been imposed. Mr Iyekekekpolar argued that this information could have been given to the tribunal (or to the authority) at a much earlier stage but had not been given. He said that had the authority known this at any time up to the tribunal decision it would have revised the original (supersession) decisions, but after the tribunal decision it would be too late for revision (and the implication is that it would also have been too late for effective supersession). Mr Batten argued that once the tribunal had pointed out that no account could be taken of the claimant's "personal circumstances", then there seemed little point to the claimant, or to the person from the hospital, in bringing this up. I deal below with the proper role of the tribunal, but Mr Batten's point is a telling one and the authority is also partly to blame because it had been put on notice in the claim form that the claimant was awaiting to hear about DLA, but it made no follow up inquiry.

The Law on Non-Dependant Deductions

12. Insofar as it is relevant, regulations 61 and 63 of the Housing Benefit (General) Regulations 1987 provides as follows:

61 … the amount of a person's maximum housing benefit in any week shall be 100% of his eligible rent …less any deductions in respect of non-dependants which fall to be made under regulation 63 (non-dependant deductions).

63(1) Subject to the following provisions of this regulation, the deductions referred to in regulation 61 (maximum housing benefit) shall be –

(a) in respect of a non-dependant aged 18 or over who is in remunerative work, £47.75 per week

(b) in respect of a non-dependant aged 18 or over to whom … (a) does not apply, £7.40 per week

63(6) No deduction shall be made in respect of any non-dependants occupying a claimant's dwelling if the claimant … is –

…

(b) receiving in respect of himself either –

(i) attendance allowance; or

(ii) the care component of the disability living allowance.

Non-dependant is defined in regulation 3(1) of the 1987 regulations. Subject to exceptions which are not relevant in this case, it is defined as meaning "any person … who normally resides with a claimant or with whom a claimant normally resides".

There are similar provisions in relation to council tax benefit set out in regulations 3(1), 51(1) and 52(1) of the Council Tax Benefit (General) Regulations 1992.

Normally Residing With

13. It is clear that for a limited period the claimant's cousin was residing with her (which is further explained in regulation 3(4) of the 1987 regulations), but was he "normally" residing with her. The extra word must mean something but the tribunal does not appear from the record of proceedings to have considered this point (although in the absence of a full statement it is not possible to know whether it was actually considered). It is a matter of fact and degree, but it seems to me that in the particular circumstances of this case – the deportation, destitution, the highly temporary nature of the arrangement, the fact that the cousin had to sleep on the sofa, the fact that he appears to have left as soon as he could arrange things with various official bodies – no reasonable tribunal could have found that the cousin was "normally" residing with the claimant.
14. That would be enough for the claimant to succeed in this appeal, but in view of what the tribunal chairman indicated in the record of proceedings, it is necessary to consider other matters.

Disability Living Allowance and Retrospective Award

15. The authority and the tribunal both had information from the claim form that a claim for DLA was awaiting determination. The actual award was made after the authority made the decisions under appeal but before the tribunal hearing. The claimant did not tell the tribunal that an award had been made but the tribunal was under a duty to ask a specific question. This duty arose from 3 factors. The wording of regulation 63 makes it clear from the outset that there are exceptions, and these include the award of care component of DLA. The claimant had referred to her own ill health, and this should have put the tribunal on notice to ask the necessary question in any event. Further, the tribunal should have followed up the information given on the claim form that a claim had been made. This was another example of the error made by the tribunal chairman in stating that no account could be taken of the appellant's personal circumstances.
16. Insofar as it is relevant regulation 4(7B) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 provides as follows:

4(7B) Where –

(a) the relevant authority makes an original decision awarding housing benefit or council tax benefit to a claimant; and

(b) entitlement to relevant benefit within the meaning of section 8(3) of the Social Security Act 1998 or to the increase in the rate of that relevant benefit is awarded to the claimant … for a period which includes the date on which the original decision took effect

the relevant authority may revise or further revise that original decision at any time.

17. Section 8(3)(a) of the Social Security Act 1998 defines "relevant benefit" to include benefit under Parts II to V of the Social Security Contributions and Benefits Act 1992. Lowest rate care component is awarded under Part III of the Social Security Contributions and Benefits Act 1992.
18. If the authority has the power to revise, and the tribunal has the power to make any decision which the authority could have made (see eg R(IB) 2/04), then it seems to me that the tribunal had the power to revise the decision so as to remove the non-dependant deductions, which is what the authority would (or should) have done had it known of the award of DLA before the tribunal hearing.
19. Thus, the retrospective award of the care component should have triggered a revision so as to remove the non-dependant deduction, and for reasons that I have explained the tribunal should have made it its business to find out whether care component had in fact been awarded.
20. Both representatives agreed that paragraph 6(9) of Schedule 7 to the Child Support Pensions and Social Security Act 2000 had no application to this case and I have resisted the temptation to add to the literature on those provisions.

H. Levenson

Commissioner

18^th March 2005