UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CH_532_2006 (10 October 2006)

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

I SET ASIDE the decisions of the Sheffield appeal tribunal, held on 14 September 2005 under references U/01/138/2005/00125 and 00126, because they are erroneous in point of law.

I give the decisions that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISIONS are to remit to the local authority for decision the claims made by the claimant in January, March and May 2004 in so far as they relate to the future and, if necessary, in so far as they relate to backdating. The local authority's decisions will carry the right of appeal to an appeal tribunal.

CH/0532/2006

History and background

2. The claimant was born on 15 October 1986. In January, March and May 2004, when she was still only 17, she submitted three forms claiming housing benefit and council tax benefit. The local authority had questions on each claim. At first, these questions were about her earnings and the local authority sent her certificates to be completed by her employers. Later, the local authority also asked for bank statements. The claimant did not provide the information requested and the information that she did supply raised more questions. Having failed to obtain the information requested, the local authority wrote to the claimant on 26 March 2004, 24 May 2004 and 29 July 2004, saying that it would not process the claims. The letter of 29 July 2004 is typical:

'CLAIM FOR COUNCIL BENEFITS

You recently made a claim for Council Benefits but did not give all the information needed to work out your claim.

I have already written to you requesting the additional information but have not received a reply.

Therefore under Housing Benefit (General) Regulation 76 and Council Tax Benefit (General) Regulation 66, the Council is no longer under a duty to process your claim.'

Legislation – power not to decide a claim

3. Those letters were issued under the authority of regulation 76(2)(b) of the Housing Benefit (General) Regulations 1987 and regulation 66(2)(b) of the Council Tax Benefit (General) Regulations 1992. For convenience, I will just refer to the housing benefit provision, which provided:

'(2) An authority shall be under no duty to make a decision on a claim-

(a) where the claim has not been made in accordance with regulation 72(1) (time and manner in which claims are to be made) or treated as so made by virtue of regulation 72(8) or paragraph 1 of Schedule A1 (treatment of claims for housing benefit by refugees);

(b) where the claimant has failed to satisfy the provisions of regulation 73 or paragraph 5 of Schedule A1 (evidence and information);

(c) where the claim has been or is treated as withdrawn under regulation 74 (amendment and withdrawal of claim).'

R(H) 3/05

4. The significance of regulation 76(2) was that a claimant had no right of appeal in respect of a local authority's refusal to proceed further with the claim. This was challenged and, on 9 September 2004, a Tribunal of Commissioners decided in R(H) 3/05 that regulation 76(2) was made without statutory authority and, as such, was of no force or effect. The Tribunal of Commissioners interpreted the refusals to proceed by the local authorities involved as refusals of benefit, which were appealable.
5. The Secretary of State did not appeal against the Tribunal's decision. Regulation 76 was amended by regulation 4(3) of the Social Security, Child Support and Tax Credits (Decisions and Appeals) Regulations 2004 (SI No 3368). The effect of the amendment was to remove regulation 76(2) as set out above and applied by the local authority in this case.

Precedent - retrospectivity

6. Lord Nicholls explained the retrospective effect of court decisions in Re Spectrum Plus Ltd [2005] 4 All England Law Reports 209 at paragraph 7:

'A court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively. The ruling will have a retrospective effect so far as the parties to the particular dispute are concerned. … Further, because of the doctrine of precedent the same would be true of everyone else whose case thereafter came before a court. Their rights and obligations would be decided according to the law as enunciated … even though the relevant events occurred before that decision was given.'

7. The Commissioners apply the same principle. The decision of a Commissioner is retrospective, so that it applies to all claims, whether made before or after the date of the Commissioner's decision, and to all periods, whether before or after that date. However, this principle is modified by statute.

Legislation – precedent modified

8. Paragraph 18 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 provides:

'18.-(1) Subject to sub-paragraph (2), this paragraph applies where-

(a) the effect of the determination, whenever made, of an appeal by virtue of this Schedule to a Commissioner or the court (the "relevant determination") is that the relevant authority's decision out of which the appeal arose was erroneous in point of law; and

(b) after the date of the relevant determination a decision falls to be made by that relevant authority or another relevant authority in accordance with that determination (or would, apart from this paragraph, fall to be so made)-

(i) in relation to a claim for housing benefit or council tax benefit;

(ii) as to whether to revise, under paragraph 3, a decision as to a person's entitlement to such a benefit; or

(iii) on an application made under paragraph 4 for a decision as to a person's entitlement to such a benefit to be superseded.

(2) This paragraph does not apply where the decision mentioned in sub-paragraph (1)(b)-

(a) is one which, but for paragraph 16(2) or (3)(a), would have been made before the date of the relevant determination; or

(b) is one made in pursuance of paragraph 17(3) or (5).

(3) In so far as the decision relates to a person's entitlement to benefit in respect of a period before the date of the relevant determination, it shall be made as if the relevant authority's decision has been found by the Commissioner or court not to have been erroneous in law.

(4) Sub-paragraph (1)(a) shall be read as including a case where-

(a) the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and

(b) the error of law made by the relevant authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.

(5) It is immaterial for the purposes of sub-paragraph (1)-

(a) where such a decision as is mentioned in paragraph (b)(i) falls to be made, whether the claim was made before or after the date of the relevant determination;

(b) where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under paragraph 3 or (as the case may be) 4, whether the application was made before or after that date.

(6) In this paragraph "the court" means-

(a) the High Court;

(b) the Court of Appeal;

(c) the Court of Session;

(d) The House of Lords; or

(e) the Court of Justice of the European Community.

(7) For the purposes of this paragraph, any reference to entitlement to benefit includes a reference to entitlement-

(a) to any increase in the rate of a benefit; or

(b) to a benefit, or increase of benefit, at a particular rate.

(8) The date of the relevant determination shall, in prescribed cases, be determined for the purposes of this paragraph in accordance with any regulations made for that purpose.

(9) Regulations under sub-paragraph (8) may include provision-

(a) for a determination of a higher court to be treated as if it had been made on the date of a determination by a lower court or by a Commissioner; or

(b) for a determination of a lower court or of a Commissioner to be treated as if it had been made on the date of a determination of a higher court.'

How regulation 18 applies

9. How does that set of complex provisions apply in the circumstances of this case?
10. The 'relevant determination' for paragraph 18(1)(a) is the decision of the Tribunal of Commissioners in R(H)3/05.
11. The rest of paragraph 18 then sets out the effect that is to be given to that decision. Let me start with what it does not say. It does not say that the decision is of no retrospective effect or that its effect is prospective only. If that were the effect of paragraph 18, it could have said so clearly, but it does not. The drafting is more complex, because the effects are more limited. The effects of the paragraph are to prevent claimants from jumping on the bandwagon of a relevant determination and to spare local authorities from the task of identifying decisions that need to be revised in the light of it.
12. Claimants cannot rely on a relevant determination if they make new claims that cover the period before it was made. Nor can they rely on it if they apply for a revision or supersession of any decisions that have been made in that period. That is the effect of paragraph 18(1)(b) read together with (3). The paragraph also prevents claimants from anticipating the effect of the relevant determination by making claims or applying for a revision or supersession before the determination is made and seeking to rely on it if they have not been decided before it is made. That is the effect of paragraph 18(1)(b) and (5) read together with (3). To the extent I have described in this paragraph, the effect of the relevant determination is prospective, not retrospective.
13. However, the paragraph does not apply if the local authority itself has held back the claim or application to await the outcome of a pending appeal. That is the effect of paragraph 18(2)(a). The result is that the normal retrospective operation of precedent applies. This shows that the effect of paragraph 18 is not simply to prevent the relevant determination having retrospective effect.
14. Paragraph 18 only applies when a decision has to be made by a local authority in accordance with the relevant determination. Paragraph 18(1)(b) in its terms only applies to decisions by local authorities. However, it must also apply if a decision taken in accordance with it comes before an appeal tribunal. That follows from the nature of an appeal. As explained by the Tribunal of Commissioners in R(IB) 2/04 at paragraph 25:

'Taking the simple case of an appeal against a decision on an initial claim, in our view the appeal tribunal has the power to consider any issue and make any decision on the claim which the decision-maker could have considered and made. The appeal tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim.'

As the decision-maker was bound by paragraph 18, the tribunal must be also. The same result is produced by the consideration that, were it otherwise, the effect of paragraph 18 could be avoided by the simple expedient of lodging an appeal against the local authority's decision.

15. However, the paragraph only applies when a decision falls to be made by a local authority in accordance with the relevant determination. Those words refer to the future, to the time after the determination has been made. It obviously does not apply to a decision taken before the relevant determination was made. It applies if the claimant asks for the decision to be revised or superseded; that is expressly caught by paragraph 18(1)(b)(ii) and (iii). But it does not apply to an appeal against the decision. An appeal is a separate process from revision and supersession and there is nothing in paragraph 18 to prevent the normal operation of an appeal (described in paragraph 14) and the retrospective doctrine of precedent (described in paragraphs 6 and 7) applying to the decision of the tribunal.
16. Applying that reasoning to the circumstances of this case, the local authority refused to proceed with three claims made by the claimant. The effect of R(H) 3/05 was that those refusals had to be interpreted as refusals of benefit, which were subject to the right to appeal. That effect is modified by paragraph 18 to the extent that it applies. However, that paragraph does not apply to an appeal against a decision that was made before R(H) 3/05 was decided. So the tribunal was obliged to apply R(H) 3/05. It declined to do so and thereby went wrong in law.

The parties' arguments

17. I have so far not referred to the arguments put by the parties.
18. The local authority relied on a circular from the Department for Work and Pensions. This advised local authorities that:

'You are reminded, however, that except for the four cases that were actually considered by the ToC, the need to give a decision on all claims will not apply before 9 September 2004 – the date of the ToC decision, see paragraph 18(4) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.'

That advice is correct as it merely tells local authorities what they do and do not need to do. But it is silent on the position if a refusal to proceed with a claim comes before an appeal tribunal on appeal, which has happened in this case.

19. The Secretary of State largely avoided considering paragraph 18 by dealing with the case on the basis of the decisions made on the claims for backdating. I have preferred not to follow that approach, because the claims for backdating do not logically arise for decision unless and until the claims for the future have been decided. However, the Secretary of State's representative does submit that 'paragraph 18 does not apply in this case as it does not apply in effect to a decision given on an appeal.' My analysis of regulation 18 supports that conclusion in the circumstances of this case.
20. The claimant's representative has consistently argued that the tribunal should apply R(H) 3/05. I have accepted that submission, although the representative did not undertake a detailed analysis of paragraph 18.

Disposal

21. As the tribunal went wrong in law, I must set it aside. I could direct a rehearing or substitute the decision that the tribunal should have given. If the tribunal had applied R(H) 3/05, it could have given two decisions. One was to decide that the local authority must now process the claim. The other was to make a decision on the claimant's entitlement itself. The latter course has two disadvantages. First, it would require consideration of all aspects of entitlement and probably another detailed submission from the local authority. Second, as the issues relevant to entitlement have never been considered by the local authority, this course would effectively deprive the claimant of any right of appeal on fact against an initial decision on entitlement. What should I do? I see no reason for a rehearing and making an initial decision on entitlement on a claim that has not been adjudicated is better undertaken by the local authority than by a tribunal. I therefore substitute a decision that the claimant did make three valid claims and the local authority must decide them.
CH/0533/2006
22. I can deal with this case briefly.
23. When the claimant made her claims for benefit in March and May 2004, she asked that they should date from January. In other words, on each occasion she made two claims, one for the future and one for backdating. The local authority refused to backdate on either claim. The claimant exercised her right of appeal on each decision, but the tribunal dismissed the appeals. The tribunal decided that the claimant did not have good cause, because she could have produced the information requested by the local authority sooner than she did.
24. I set aside the tribunal's decisions on backdating on the ground that the tribunal did not sufficiently take account of, or adequately explain how it took account of, the claimant's particular difficulties in obtaining the evidence requested, given her age and inexperience, the support that she required with housing, and the lack of co-operation from at least some of her employers.
25. Having set aside the tribunal's decisions on backdating, how should I dispose of this appeal? A rehearing before a tribunal is not appropriate, because the relevant circumstances are in evidence. I can substitute the decision that the tribunal should have given. The only issue is whether those circumstances amount to good cause. I could make a decision on that myself. However, the issue only arises if the claims for the future are refused. They must be decided first and I have remitted that to the local authority. It would be premature for me to decide the backdating claims at this stage. Moreover, I suspect that the claims for backdating are now redundant in view of my decision in CH/0532/2006. However, there is perhaps a remote chance that they may be of value to the claimant. In those circumstances, the only proper decision that the tribunal could have given was to refer the claims for backdating to the local authority to decide afresh on the information available if necessary given the authority's decision on the claims for the future. That is the decision I have given.

Signed on original on 10 October 2006

Edward Jacobs Commissioner