Upper Tribunal (Administrative Appeals Chamber)

[2008] UKUT 13 (AAC) (06 November 2008)

 


IN THE UPPER TRIBUNAL Appeal No. CH/1764/2008

[2008] UKUT 13 (AAC)

ADMINISTRATIVE APPEALS CHAMBER

Before Mr. Michael Mark sitting as a Deputy Judge of the Upper Tribunal

Decision: The appeal is allowed. I set aside the decision of the tribunal and I substitute my own decision that the suspension of benefit was invalid as was the subsequent cancellation of benefit and that the claimant remained entitled to both housing benefit and council tax benefit from 4 November 2006 until it was superseded by the new awards in respect of the period from 4 March 2007.

As a result of the re-organisation of the Tribunal Service, this appeal is decided by me sitting as a deputy judge of the newly created Upper Tribunal, instead of being decided by me sitting as a deputy Social Security Commissioner.

REASONS FOR DECISION
1. This is an appeal by the claimant with the leave of a social security commissioner from a decision of the Hounslow Appeal Tribunal given on 28 January 2008 disallowing the claimant's appeal from a decision of the London Borough of Hounslow (the council) given on 25 September 2007, confirming that decision and finding that the claimant had failed to show continuous good cause for failing to make his claim for housing benefit and council tax benefit before 4 March 2007.
2. The tribunal found that the claimant had been in receipt of housing benefit since September 2002; that on 16 October 2006 the council had sent the claimant a review form to complete; that it had been sent by post; and that it had not been received by the claimant (there was evidence of post in the area being delivered to the wrong address). The council had written to the claimant on 17 November 2006 informing him that his housing and council tax benefit had been suspended. He had then contacted the council on 15 December 2006 – the council's evidence was that he then stated that the review form had not been received by him. A subsequent attempt to contact the claimant by telephone ended with the call being terminated by him. On 12 January 2007 the council terminated the claim for benefit as there had been no response to the suspension letter and the review form was still not returned (file p.40).
3. The claimant was sent a new claim form to complete. The tribunal referred for this purpose to p.42 of the file. This computer print out shows that the claimant had contacted the council on 22 February 2007 by telephone and that a new form was to be sent out. However the tribunal also found that the claimant had made a claim for jobseeker's allowance on 12 January and had been given forms for housing and council tax benefit. The tribunal then found that the claimant completed and signed a claim form on 5 February 2007, contacted the council to say that he would return the form on 22 February 2007 and actually returned it over the counter on 2 March 2007.
4. Housing benefit was ultimately re-awarded from 4 March 2007, and this appeal concerns the period between 13 November 2006, when benefit was first suspended, and 4 March 2007.
5. The tribunal first dealt with the question whether the council had acted within the relevant regulations by suspending and then terminating the original award of benefit. It concluded that the council was entitled to do as it did because the claimant had failed to return the review form. It then went on to consider whether the new claim could be backdated as sought by the claimant, and decided that it could not because the claimant did not have continuous good cause for his failure to make a claim before 2 March 2007 (the reference in the statement of reasons to 4 March as the date of the claim is plainly wrong).
6. Having heard evidence from the claimant, through an interpreter, as to what had occurred, the tribunal found that it was unclear why the claimant had failed to act earlier. He admitted that he knew that his claim had been suspended but other than making a phone call he failed to take any pro-active action although he knew his claim was in jeopardy. By 14 January he knew his claim had been cancelled, yet the claim form was not submitted to the council until 2 March 2007 even though he had signed it on 5 February. On that basis the tribunal could not find continuous good cause.
7. On this appeal, the claimant's representative has drawn attention to the claimant's inability to speak English well, to his business problems and to the illness of his daughter. I can see that these might well have caused delay in completion of the form. It is also the case that until the previous award was, purportedly, terminated he was not in a position to make a new claim at all. I have no difficulty in seeing that he may well have had good cause for the delay between mid-January and early February, and that he cannot reasonably have been expected to make a new claim at all before mid-January, when he learned that his existing benefits had been retrospectively terminated. However, there is no explanation for the delay of three and a half weeks, after the form was completed, in sending it, or taking it, to the council, and none of the matters put forward on behalf of the claimant can excuse this delay.
8. So far as it relates to the backdating issue, this appeal therefore fails.
9. This leaves the question whether the council was entitled to suspend and terminate the previous award of benefit on the ground that the claimant had not furnished the information required by the review form, which the tribunal held he had never received.

The alleged failure to provide information

10. The requirement to provide the information in relation to housing benefit is contained in regulation 86(1) of the Housing Benefit Regulations 2006, which provides as follows:

"… a person who makes a claim, or a person to whom housing benefit has been awarded, shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person's entitlement to, or continuing entitlement to, housing benefit, and shall do so within one month of being required to do so or such longer period as the relevant authority may consider reasonable."

11. The same provisions are to be found in relation to council tax benefit in regulation 72 of the Council Tax Regulations 2006, except that at the relevant time the period within which the information had to be provided was 4 weeks.
12. Regulation 2 of the Housing Benefit and Council Tax Benefits (Decisions and Appeals) Regulations 2001 (the Decisions and Appeals Regulations) applies to Regulation 13. It reads, so far as material:

"Where, by, or in consequence of, any provision of these Regulations or Schedule 7 to the Act [that is the Child Support Pensions and Social Security Act 2000] –

….

(b) any notice … or other document is required to be given or sent to any person other than the clerk to an appeal tribunal, the Secretary of State or the relevant authority, as the case may be, that notice or document shall, if sent by post to that person's last known address, be treated as having been so given or sent on the day it was posted."

13. Neither the Housing Benefit Regulations 2006 nor the Council Tax Benefit Regulations 2006, however, are made under Schedule 7 to that Act, and there is no equivalent provision in those Regulations. Accordingly, in considering what has been reasonably required of a person by the local authority for the purposes of those sections, it is necessary that the requirement should have actually been communicated to the person in question, at least to the extent that it can be shown to have been delivered to him personally or in some other way, such as by being left at his home.
14. I am unable to see how, in the ordinary use of the English language, a person can be said to have failed to comply with a requirement of which he has no knowledge or means of knowledge. The requirement is only made once it has been sufficiently communicated. In this case the effect of the tribunal's finding that the council's review form was not received by the claimant was the requirement was never communicated to him, and he never came under any obligation to respond to it. In the absence, therefore, of any special provision such as is to be found in regulation 2 of the Decisions and Appeals Regulations, I am unable to see how he can have failed to provide information, the request for which has never reached him because it was lost in the post. Its loss in the post meant that the requirement to provide the information was never communicated to him.
15. This was not appreciated by the council. A copy of the request for information was finally produced for the first time when the council made its submissions on this appeal. It states a "date issued" and requires that the form must be returned within one month of that date, which corresponds with the date shown on the computer print out at p.35 when the form is said to have been created.

The right to suspend benefit

16. Paragraph 14 of Schedule 7 to the Child Support Pensions and Social Security Act 2000 (the 2000 Act) enables regulations to be made which provide for the suspension of payments of housing benefit and council tax benefit in relation to persons who fail to comply with information requirements. Regulation 13 of the Decisions and Appeals Regulations provides for suspension of benefit in relation to, amongst others, "a person in respect of whom a question has arisen in connection with his award of benefit and who fails to comply with the requirement in regulation 86 of the Housing Benefit Regulations … [or] ... regulation 72 of the Council Tax Benefit Regulations … to furnish information or evidence needed for a determination whether a decision or an award should be revised … or superseded…".
17. On the basis that the claimant had not failed to comply with any requirement, because it had never been communicated to him, regulation 13 cannot apply to him and the suspension was not validly made.
18. Regulation 13(1) empowers the council to suspend benefit "in relation to persons who fail to comply with the information requirements (as defined in paragraph 14 of Schedule 7 to the Act [i.e. the 2000 Act]) as provided for in regulations made pursuant to section 5(1)(hh) and 6(1)(hh) of the Administration Act [i.e. the Social Security Administration Act 1992]". The Housing Benefit Regulations are expressed to be made under, amongst other provisions, section 5(1)(hh) and the Council Tax Benefit Regulations are expressed to be made under, amongst other provisions, section 6(1)(hh) of the Administration Act. If, therefore, the claimant had failed to return the review form, having received it, the council would have been entitled to suspend benefit, but would also have had to send a notification to the claimant under regulation 13(3) of the Decisions and Appeals Regulations.

The duty to notify

19. Regulation 13(3) requires the relevant authority to notify any person to whom this regulation applies of the requirements of the regulation. The claimant would only be a person to whom the regulation applied if he had failed to comply with the earlier requirements under the Housing Benefit and Council Tax Benefit Regulations. Regulation 13(3) therefore clearly requires a new notification to be sent to him.
20. The requirements of regulation 13 are set out in regulation 13(4), which provides that that person must furnish the information or evidence needed within one month from the date on which the notification was sent to him, or such longer period as the relevant authority considers necessary in order to enable him to comply with the requirement, or satisfy the authority that the information or evidence does not exist or cannot be obtained by him.
21. Regulation 2 of the Decisions and Appeals Regulations applies to this regulation, so that, once the person to whom the regulation applies has failed to comply with a relevant earlier requirement, this notification is treated as given on the day it is posted. However, there is no suggestion here that after the claimant failed, if he did fail, to comply with the earlier requirement, any notification was ever sent under regulation 13(3) referring to the requirements set out in regulation 13(4). The only letter that was sent, again produced only for the purposes of this appeal, simply notifies the claimant of the suspension of benefit and asks him to contact the council to discuss his claim, and warns him that his claim would be ended if he did not contact the office within one month.
22. It is clear that the claimant did then contact the council within the one month period to say that he had never received the form, but on 12 January 2007, without apparently even sending him a new copy of the review form, the council terminated his awards of benefit.

The power to terminate benefit

23. Regulation 14(1) of the Decisions and Appeals Regulations provides that a person in respect of whom payment has been suspended under regulation 13 shall cease to be entitled to the benefit from the date on which the payments were suspended, but regulation 14(2)(a) provides that this does not apply before the end of the period under regulation 13(4) for the provision of information. Under regulation 13(4)(a) the minimum period for that purpose is one month from the date when the notification under regulation 13(3) was sent to him. As no such notification was ever sent, even if the claimant had received and failed to respond to the review form, his benefit could not be terminated because no notification under regulation 13(3) had ever been sent.
24. In the present case, the claimant can therefore only have had his benefit suspended if he had failed to comply with the requirements of regulation 86 of the Housing Benefit Regulations and/or Regulation 72 of the Council Tax Benefit Regulations, and has then been given a further month to comply with the warning specified in Regulation 13(3) of the Decisions and Appeals Regulations.
25. In any event, it is plain that once it had been told that the review form had not been received by the claimant, the council had to decide whether to allow an extension of time for it to be completed. Unless it concluded that it did not accept that the form had not been received, as to which there is no evidence, it was bound to resend the form and extend time for its return for a reasonable period after it had been sent. It failed to do this. The claimant still, on the findings of the tribunal, had no form and thus no way of providing the information that was requested by it.
26. Further, the letter from the council dated 17 November 2006 to the claimant advising him that his benefit had been suspended does not adequately identify the information that had been requested and does not notify the claimant of the requirements of regulation 13 of the Decisions and Appeals Regulations, including the need to furnish the information or evidence within a month or satisfy the council that the information or evidence requested did not exist.
27. Under regulation 14(1) of the Decisions and Appeals Regulations, a person in respect of whom payment of benefit had been suspended under regulation 13 for failing to comply with a requirement shall cease to be entitled to the benefit from the date on which the payments were so suspended, but by virtue of regulation 14(2)(a), this was only to be the case from the end of the period under 13(4) for the provision of the information. As there had never been any such period, the benefits never ceased and the claimant remained entitled to them.

Conclusion

28. The end result therefore is that the council had no power to suspend benefit because the claimant had not failed to provide the information. It therefore also had no right to terminate benefit. Further even if there had been a valid suspension of benefit, the council had no power to terminate it when it did, or at all, because the council failed to send the warning notification under regulation 13(3), and the power to terminate only arose at the soonest one month after that notification had been sent. On the basis that the review form had never been received by the claimant, it is also clear that he should have been sent a new form and time for compliance ought to have been extended.
29. On the evidence before it, the tribunal, which plainly, and rightly, treated the appeal before it as including an appeal against the termination of the original benefit by the council as well as an application to backdate the new application, ought to have set aside the decision terminating the original entitlement and the decision to suspend benefit. If the council considers that it still needs any further information in respect of that period, it is open to it to investigate further, but in the meantime the claimant's benefit was not properly suspended or terminated and he remains entitled to be paid.

Michael Mark

Deputy Upper Tribunal Judge

6 November 2008