UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CH_282_2006 (27 July 2006)

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
1. My decisions are given under paragraph 8(4) and (5)(c) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000:

I SET ASIDE the decisions of the Chester appeal tribunal, held on 20 October 2005 under references U/06/065/2005/00819 and 00853, because they are erroneous in point of law.

I REMIT the cases to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeals and, subject to the tribunal's discretion under paragraph 6(9)(a) of Schedule 7 to the 2000 Act, any other issues that merit consideration.

What I have to decide

2. This case concerns the amount of the claimant's capital from time to time following her receipt of the proceeds of sale of a property she owned in Crewe. The appeal tribunal allowed the claimant's appeal and the local authority has appealed, with my leave, on one issue.
3. That issue concerns regulation 9(3)(c) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001. The default position is that a claimant is allowed one month in which to notify a change of circumstances. Regulation 9 governs the effective date where there has been late notification of a change. It only applies if a number of specified conditions are satisfied. One is paragraph (3)(c):

'special circumstances are relevant and as a result of those special circumstances it was not practicable for the applicant to notify the change of circumstances within one month of the change.'

4. The tribunal found that those conditions were satisfied. I have to decide if the tribunal went wrong in law in doing so.

Analysis

5. Regulation 9(3)(c) contains three conditions. First, there must be special circumstances. Second, it must not be practicable to notify the change within one month. Third, the impracticability must be a result of the special circumstances. These are issues of fact, although the factors that are or are not relevant are matters of law.
6. Practicability 'involves a test of feasibility, not a test of desirability or convenience or anything of that sort': Singh v Post Office [1973] ICR 437 at 440. Special circumstances are not defined, but obviously they must be in some way unusual. Moreover, as the impracticability must result from the special circumstances, it follows that those circumstances must be in some way related to or affect the practicability of reporting the change of time within one month.
7. There was a conflict of authorities in the National Industrial Relations Court on the factors that were relevant to the practicability of making a claim. The opinion expressed in Dewar & Finlay Ltd v Glazier [1973] ICR 572 was that ignorance of rights was not a relevant factor. This was based on authorities on workmen's compensation cases. By analogy, ignorance of duties should not be relevant. This accords with the context and the natural meaning of 'practicable'. The context of regulation 9 suggests that it relieves a claimant of a time limit when it would not have been possible to act within that time. And practicability too conveys ability and achievability. That suggests that regulation 9 grants relief when information could not be obtained or could not be conveyed to the local authority.

What the tribunal did

8. The chairman recorded:

'The tribunal considered that there were special circumstances in this case, as required by regulation 9(3)(c). This was an unusually complicated case. [The claimant] felt that she had been given inadequate instructions and advice from the council about what information was required from her. There were a number of decisions in relation to housing benefit sent to her in a relatively short period of time. The sequence of events leading up to the benefit officers visit of 13.10.04 is set out in [the claimant's] letter of 11.11.04, in particular B pp38 and 39. Even after that visit there was further confusion (see B p40).'

How the tribunal went wrong in law

9. The tribunal went wrong in law in a number of ways.
10. First, it dealt only with regulation 9(3)(c). It did not have regard to the other conditions in regulation 9. In particular, it did not have regard to the overall reasonableness of adjusting the effective date of the supersession to take account of the change of circumstances: regulation 9(3)(a). The passage I have quoted concentrated on the claimant's view. The tribunal did not make any finding on whether or not her view was reasonable. (On this, see my comments on the tribunal's fifth mistake.)
11. Second, the tribunal had to apply regulation 9(3)(c) at and following the time when each change occurred. The tribunal did not relate its reasoning to that particular time. It dealt in a general and overall way without regard to the state of the claimant's confusion, if that is what is was, at that particular time. Two of the changes that the tribunal dealt with had occurred in April and May 2004, whereas the tribunal had regard to the whole history of the claimant's dealing with the local authority down to, at least, October 2004.
12. Third, the tribunal misdirected itself on the relevance of the claimant's understanding of what she was required to do. Although the chairman has not spelt it out, it seems that the tribunal found that as the claimant was confused by the nature and number of the communications with the local authority, it was not practicable for her to have provided the information within the month. As I have said, that was not a relevant factor. However, I have not had argument on that issue and would not have decided the case against her on this ground alone without directing an oral hearing or further argument.
13. Fourth, the tribunal found special circumstances, but the chairman did not refer either to practicability or to the causal connection between the two. They were essential matters. Perhaps they can be inferred; certainly I would not have set the decision aside on this ground alone.
14. Fifth, the chairman has not explained the tribunal's decision adequately. The claimant says that she did not understand what was required of her. Her letters show her to be organised and articulate. It would be astonishing if she did not understand what she needed to provide if the officers had made this reasonably clear. And it would be surprising if the officers dealing with her could so often have failed to make themselves clear. I accept that I was not present at interviews and there is a conflict about what was said. There can, though, be no doubt about what the local authority said in its letters. Those letters made clear what the verification framework was and the importance of proof. The one of 18 October 2004 could not have been clearer: 'We also require proof of disposal of the capital and any expenditure will have to be accounted for by receipt or similar documentation.' How could anyone misunderstand what was written? I appreciate that I am taking just one letter from a number that the claimant received. But the letters I have read are all admirably clear. And surely anyone would realise that the local authority needed to know what had happened to the money that the claimant received. That is basic common sense.

Disposal

15. I have considered whether to substitute decisions for those of the appeal tribunal, confirming its decisions but without the benefit of regulation 9. However, as the tribunal did not give complete consideration to regulation 9, it is right that the claimant should have the chance of a rehearing at which all the conditions in that regulation can be examined. Accordingly, I allow the appeal, set aside the tribunal's decisions and remit the cases to a different appeal tribunal to consider afresh the issues that arise for decision.

Signed on original on 27 July 2006

Edward Jacobs Commissioner