UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CH_3935_2007

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DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under paragraph 8 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000:

The decision of the Bexleyheath appeal tribunal under reference 168/06/00043, held on 18 May 2007, is not erroneous in point of law.

REASONS

Sadly, the claimant died on 9 February 2007 before the proceedings before the tribunal were complete. The appeal has been handled throughout by her representative.

The issue is whether a non-dependant deduction should be applied to the claimant's awards of housing benefit and council tax benefit on the basis that her daughter normally resided with her.

Leave to appeal was given by a district chairman. Unusually, neither the local authority nor the claimant's representative has made observations on the appeal.

Sequence of decisions

Unfortunately, there has been a degree of confusion over the decisions that have been made and their legal basis. I will concentrate on the correct analysis and avoid, as far as possible, setting out in detail other views, whether of the local authority, the tribunal and the claimant's representative in his grounds of appeal.

The claimant claimed housing benefit and council tax benefit on 30 March 2005 when she was on the point of moving into new accommodation. Her daughter had recently been evicted and came to stay with her. Benefit was awarded from 4 April 2005. The local authority first made a decision (strictly two decisions – one for each benefit) on 6 May 2005 and included a non-dependant deduction of £7.40 a week in respect of the claimant's daughter. The decision was revised on 12 May 2005 to increase the deduction to £17 a week. As no payment had yet been made to the claimant, no overpayment arose. Unfortunately, an overpayment notification was sent to the claimant. This was a mistake and can be ignored. On 2 November 2005, the local authority again revised its decision and restored the original deduction of £7.40 a week. The amount of the deduction depended on whether the daughter was working. As the evidence showed that she was not, £7.40 was the correct amount if a deduction was appropriate.

The appeal

The claimant then lodged an appeal. In its terms, it included the overpayment decision. As I have said, that did not exist. The appeal has been treated by the parties and the tribunal as confined to the non-dependant deduction issue.

What decision was before the tribunal?

The decisions of 12 May and 2 November were both revisions of the decision of 6 May. Accordingly, the proper subject of an appeal was the decision of 6 May as later revised. The revision of 2 November effectively reversed the revision of 12 May. The result was that the decision under appeal was the decision of 6 May as revised on 2 November.

The actual revising decisions were not appealable, because they had no existence separate from the decision being revised. This did not operate to the claimant's disadvantage because (i) there is an appeal against the original decision as revised and (ii) that decision is treated as made on the date when it was revised 'for the purposes of any rule as to the time allowed for bringing an appeal' (paragraph 3(5) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000).

I agree with the argument by the claimant's representative that the tribunal misunderstood the nature of the decision before it. However, my reasoning is different. I also believe that the representative has been confused by the use of the word 'revised' in the tribunal's decision notice. This is standard terminology used in those documents. It is unfortunate, as it is misleading and can be confusing. 'Revised' there is not used in the sense of revision and supersession. It simply means 'changed' and carries no proper connotation of the legal process employed to effect that change. Commissioners have complained over the years about this wording, but without effect.

Unfortunately, the tribunal did not appreciate the decision under appeal or its proper nature. It is clear from both the chairman's decision notice and his full statement of the tribunal's decision that he believed there were two decisions under appeal, one of 12 May 2005 and the other of 2 November 2005. In other words, he treated each revision as a separate appealable decision. In fact, he had only one: the original decision of 6 May as revised on 2 November 2005. To be fair to the chairman, he may have been confused by the way the appeal was presented by the local authority, which may in turn have been affected by the confusion caused by the notification of an overpayment decision.

Although the tribunal had before it a revised decision, it had power to substitute a superseding decision. See the decision of the Tribunal of Commissioners in R(IB) 2/04.

Evidence and circumstances

Paragraph 6(9) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 provides:

'In deciding an appeal under this paragraph, an appeal tribunal-

…

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.'

I analysed an equivalent provision (section 12(8)(b) of the Social Security Act 1998) in R(DLA) 2 and 3/01 and decided that the key consideration was the circumstances that were obtaining at the time of the decision under appeal. It does not matter when the evidence of those circumstances came into existence or became available. What matters is the date to which it relates. If it relates or can be related to the time of the decision, it is admissible.

This needs particular attention in the case of a revised decision. The date of the decision is only treated as that of the revising decision for the purposes of bringing an appeal. For all other purposes, the decision is made on the original date. In this case, that was 6 May 2005. That was the relevant date of the purposes of paragraph 6(9). See my decision in R(CS) 1/03.

However, if the tribunal exercises its power to treat a revision as a supersession, the actual date of the decision then becomes the relevant time for the purposes of paragraph 6(9). In this case, that is 2 November 2005.

The non-dependant deduction

Although the tribunal did not correctly understand the nature of the decision before it, I can correct any errors that it made and will be prepared to do so if its decision was correct on the substantive issue before it.

The appropriateness of the non-dependant deduction turned on whether the claimant's daughter was normally residing with her: regulation 3(1) of the Housing Benefit Regulations 2006 and regulation 3(1) of the Council Tax Benefit Regulations 2006. If she was, a deduction was appropriate. If she was not, a deduction was not appropriate.

As at 6 May 2005

I first consider whether a non-dependant deduction was appropriate at 6 May 2005, the date of the decision under appeal.

The tribunal decided that no deduction was appropriate at that time, because the claimant's daughter was not normally living with her at that stage. Its reasoning was as follows. The daughter had recently been evicted, was unemployed and was not receiving any benefits. The claimant's flat had only one bedroom and was intended for use by tenants who were at least 40 or disabled. As a result, the housing association landlord had said that she could only stay for three months. Although there was nowhere for the daughter to live other than with her mother, that did not mean that she was normally living with her.

I can find nothing wrong in law with the tribunal's analysis. Nor can I find anything wrong with it in fact. At that time, the daughter's future was still uncertain. As far as the claimant and her daughter were concerned, the arrangement was temporary, provisional and, so far as the suitability of the accommodation was concerned, far from satisfactory. The daughter had no other accommodation, but that might change. If she were able to find employment or even to claim an appropriate package of benefits, she might be able to find her own accommodation. In view of the nature of the accommodation that mother and daughter were sharing, the local authority might have been able to find somewhere for the daughter to live. In short, it was too soon for it to be said that the daughter normally resided there. The tribunal was right in fact and law to revise the decision of 6 May by removing the non-dependant deduction.

Thereafter

As a non-dependant deduction was not appropriate at the time of the decision under appeal (6 May 2005), that decision could not be revised to include one from a later date. However, it is possible that a deduction became appropriate from a later date but before 2 November 2005. If so, the tribunal could have given effect to that by way of a supersession.

Strictly speaking, the legal burden would be on the local authority to prove any change that would justify applying a non-dependant deduction from a later date. The authority, of course, had no evidence either way. So the practical significance of this is that no deduction can be applied if the evidence available is insufficient to show when circumstances changed.

What evidence is there of what happened after 6 May 2005? The claimant signed a letter on 19 April 2006. She said that she could not ask her daughter to leave, as she would be in real danger if she did. She was seriously mentally ill, could not work, would not see a doctor, was starving herself and would not go out. The claimant had contacted MIND for advice and support in order to obtain medical help and any benefits her daughter might be entitled to.

That letter described circumstances as they were some months after 2 November 2005. However, it is clear to me that by April 2006 the claimant's daughter did normally reside with her mother. She had by then been there for a year and, as far as I can tell from the limited evidence available, her condition had deteriorated since May 2005. Certainly, the evidence did not indicate that things were initially as serious. But a year later, the daughter was obviously unable to work and no claims had been made for benefit for her. Nothing had been done to find her other accommodation. The housing association landlord had taken no steps to evict her. In view of its letting policy, I doubt whether it took a formal decision to allow her to say. It may, though, have overlooked the matter or just turned a blind eye to it. Whatever the explanation, she was still there. With the assistance of MIND, it is possible that things might happen, but that was in the future.

What is lacking is any evidence to show how things were closer to 2 November 2005. The tribunal decided that the daughter was normally residing with her mother by that date. It felt able to relate the evidence in the letter of April 2006 to November 2007 and reasoned:

'By November 2005 [the daughter] had been living at her mother's address for 7 months. She had nowhere else to live and was clearly reliant on her mother for her needs. Her mother had taken a decision that she would not ask her to leave (even though her accommodation was clearly not suitable for two adults in their situation). It is clear that [the claimant] was doing what any parent would be likely to do in such circumstances, namely she was providing a home for her daughter. There is no evidence that there was any prospect that [the daughter] would move out in the foreseeable future, and no reason to think that [the claimant] would become unwilling to continue providing her with a home. By November 2005 I consider that these factors mean that [the daughter] could properly be described as ordinarily resident with [the claimant].'

I can see nothing wrong in law with that analysis. The reference to 'ordinarily resident' is inappropriate, but the statement as a whole shows that the chairman correctly understood the legal issue. The outcome is, as the chairman admitted, arbitrary in a sense. However, there is only limited evidence available and no prospect of obtaining any better. The analysis I have quoted is rational and perceptive of the situation in which the claimant and her daughter found themselves. It is a fair and reasonable outcome.

In those circumstances, the proper decision is to supersede the decision of 6 May 2005 (as revised to revised the non-dependant deduction) to include an appropriate deduction from the benefit week beginning on 31 October 2005.

The claimant's representative has cited cases to me, but as he accepts this is a matter of fact. It is not proper to argue by analogy from the time taken in other cases to become normally resident. Each case has to be determined in the circumstances of its own particular facts. I do not find it helpful to consider the facts of other cases. Nor do I find it helpful to consider how long a claimant may be deemed to continue to occupy a dwelling despite being absent therefrom. Those are deeming provisions and exist for a different purpose. They apply despite the actual facts of where the claimant is normally residing, whereas the issue here depends on the actual facts. Finally, I accept that the circumstances of the claimant and her daughter were, as the representative says, 'abnormal'. However, it is still possible that the claimant's daughter was normally residing with her despite the abnormal circumstances in which that state of affairs came about.

Conclusion and disposal

The tribunal misunderstood the nature of the procedural issues in which the substantive issue of the residence of the claimant's daughter was entangled. However, I have been able to separate the two. I have found no error of fact or law in the tribunal's analysis and conclusion of the substantive issue of normal residence. And it is easy to place those conclusions in the proper procedural context of revision and supersession. There is no prospect of obtaining more relevant evidence. I can find no justification for coming to a different conclusion on the facts from the tribunal. Accordingly, I dismiss the appeal.

Signed on original
on 07 April 2008

Edward Jacobs
Commissioner