Upper Tribunal (Administrative Appeals Chamber)

Basildon District Council v AM [2009] UKUT 113 (AAC) (22 June 2009)
Housing and council tax benefits
liability, commerciality and contrivance

 


DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant local authority.

The decision of the Basildon appeal tribunal dated 9 October 2008 under file reference 919/08/02115 does not involve an error on a point of law.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1. The appellant local authority's appeal to the Upper Tribunal (formerly the Social Security Commissioner) is dismissed. The decision of the Basildon appeal tribunal dated 9 October 2008 under file reference 919/08/02115 does not involve any errors on points of law. The appeal tribunal's decision therefore stands.

T The impact of the new tribunal system on this case

2. This case originally started as the claimant's appeal to the appeal tribunal against the local authority's decision in relation to her housing benefit entitlement. The Basildon appeal tribunal heard that appeal on 9 October 2008. Both parties had a right of appeal from that tribunal's decision to the Social Security Commissioner.
3. However, on 3 November 2008 the Tribunals, Courts and Enforcement Act 2007 replaced the appeal tribunal with the Social Entitlement Chamber of the First-tier Tribunal. The 2007 Act also replaced the Social Security Commissioner with the Administrative Appeals Chamber of the Upper Tribunal with effect from the same date. These changes have been made with a view to improving the system of administrative justice as a whole.
4. A Judge of the Administrative Appeals Chamber of the Upper Tribunal, rather than a Social Security Commissioner, has therefore decided this appeal. However, in the context of this particular case these changes only affect the procedures (and tribunal titles) involved – the law relating to the claimant's entitlement to housing benefit and her liability (if any) to repay any overpayment of housing benefit remains exactly the same as before.

The issue at the heart of this appeal

5. The practical issue at the heart of this appeal is whether the appellant is liable for an alleged overpayment of housing benefit in the sum of £24,213.56 for the period from 4 June 2001 to 3 September 2006. The Basildon appeal tribunal decided that she was not.

A brief chronology of the appeal

6. The local authority originally made a decision on 18 September 2006. The authority's view was that the claimant's tenancy with her landlord was not on a commercial basis. The claimant appealed against that decision. The Basildon appeal tribunal heard her appeal on 9 October 2008 and allowed the appeal, ruling that the tenancy was on a commercial basis, she had a liability to make rental payments and the decision seeking to recover the alleged overpayment was accordingly set aside. The tribunal also issued a Statement of Reasons, finding (amongst other matters) that the claimant was a credible and believable witness.
7. The local authority applied for permission to appeal to the Upper Tribunal. District Judge Turrell, who had not chaired the tribunal, granted the local authority permission to appeal. He noted that the local authority complained that the tribunal had not dealt with every point which they had raised, but also that the tribunal's Statement of Reasons had given a comprehensive history of the case and made a credibility finding (in the claimant's favour). He asked whether the tribunal's approach was correct.

The scope of a further appeal to the Upper Tribunal

8. It is important to realise that the right of appeal to the Upper Tribunal is not a further opportunity to argue about the facts of the case. The appeal tribunal (now the First-tier Tribunal) is the right forum for deciding the facts. The further right of appeal to the Upper Tribunal is on a point of law only. The simple fact that a party does not agree with a tribunal's finding of fact or with a piece of evidence does not of itself mean that the tribunal's decision is wrong in law.

The local authority's grounds of appeal to the Upper Tribunal

9. The local authority has set out detailed grounds of appeal and supporting argument. In summary, the local authority argues that the appeal tribunal failed to take into account and/or failed to accord sufficient weight to nine particular features of the case. The local authority further argues that the tribunal took into account and placed weight on irrelevant matters and made a decision not supported by the evidence. It is said that the tribunal also failed to give adequate reasons for its decision, for example by not explaining the "clear and overwhelming evidence" that the property had been let to the claimant on a commercial basis. Finally, it is argued that the tribunal erred in law by failing to consider regulation 9(1)(l) of the Housing Benefit Regulations 2006.
10. The claimant is understandably distressed about how long these proceedings have taken, and has difficulty in understanding why the local authority are still pursuing the matter as the initial tribunal ruled in her favour. Her written submission essentially focuses on the facts of the matter and does not engage with the legal issues.

What the local authority decided in the first place

11. The local authority had decided that the claimant's tenancy was not on a commercial basis. They concluded that she was therefore not entitled to housing benefit by virtue of regulation 9(1)(a) of the Housing Benefit Regulations 2006 (repeating earlier legislation to the same effect). They also decided that as a result there had been an overpayment of housing benefit amounting to £24,213.56 for the period from 4 June 2001 to 3 September 2006, which was recoverable from the claimant. The local authority provided a very detailed submission to the tribunal – a "summary of facts" amounting to nearly five A4 pages of closely typed print and a further 10 and a half sides of A4 analysing the evidence in the light of the relevant legislation and case law to justify the local authority's conclusions.

What the tribunal decided on appeal

12. The tribunal's conclusion was clear: there was a legal liability on the claimant to pay rent to her landlord at her then current and previous property, which had been occupied on a commercial basis and that there was a genuine tenancy between the parties. As a result regulation 9(1)(a) did not apply so as to disentitle the claimant from housing benefit and the local authority's overpayment decision was set aside.
13. This conclusion was underpinned by a very strong credibility finding. The tribunal judge found that "the appellant [the claimant at that stage] attended and gave evidence in a clear and convincing manner. The Tribunal found that her evidence was credible and although there was [sic] some aspects of the relationship between herself and her landlord… that made the arrangements slightly unusual the Tribunal nevertheless concluded that there was clear and overwhelming evidence that [the landlord] had let [the property] to the appellant on a commercial basis".
14. The tribunal then went on to review the evidence and make findings of fact by reference to the chronology of the parties' relationship. This dealt with, for example, the circumstances surrounding various key events (e.g. how they met, the background to the initial and subsequent tenancy, etc). It included the finding that "She stated and we believed her that each year she would enter into a tenancy with [the landlord] in the form that [appeared in the papers]".
15. The tribunal also dealt with the circumstances surrounding the serious burns suffered by the landlord in an accidental fire and how the claimant looked after him for a period, noting that the Department for Work and Pensions had been satisfied that the parties were not living together as husband and wife. The tribunal judge also dealt in some detail with the "unusual features" of two loans which the landlord had obtained with the claimant's assistance, noting the landlord's unusual lifestyle (he lived on a boat) and his difficulty in securing credit alone.
16. The tribunal judge repeated his conclusion that "I found the appellant to be credible and believable". He also ruled that, notwithstanding some of the unusual aspects of the relationship (e.g. the claimant's assistance in securing loans and personal care and kindness during his period of recovery from the burns incident), "I nevertheless find as fact that the tenancy was on a commercial basis and that throughout this period the appellant paid to her landlord rent".

The credibility finding

17. The credibility finding in this case was central to the tribunal's conclusions. In a previous unreported decision, CIS/4022/2007, I reviewed the case law on the principles governing the extent to which reasons may need to be given for findings of credibility (at paragraphs 33-51). I concluded as follows:

'52. In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".'

18. On the facts of that particular case the tribunal had made an adverse credibility finding against the claimant. In the present case, however, the tribunal made a positive finding. However, the legal principles involved remain the same. There is no basis in the present case to challenge the tribunal's very clear and strong findings on credibility in the light of the principles outlined above.

The local authority's arguments before the Upper Tribunal

19. The local authority are not seeking now to challenge that credibility finding by the tribunal head on. Rather, they seek to undermine that conclusion by arguing that the tribunal failed to take into account or give sufficient weight to certain factors in the evidence or took into account immaterial considerations. They combine that with a challenge to the adequacy of the tribunal's reasoning.

The evidence and the tribunal's fact-finding

20. In particular, the local authority argue that the tribunal failed to take into account nine factors. These were that (1) the parties had previously shared a different address; (2) the parties had co-operated over two credit applications; (3) there was no [documentary] evidence of rent payments; (4) the claimant had failed to disclose a bank account; (5) the property was in a poor state of repair at the outset; (6) no deposit had not been paid; (7) the rent had not been increased when the property had been improved; (8) the claimant had been the landlord's carer; and (9) there had been some pooling of resources and sharing of bills.
21. However, the tribunal judge plainly did expressly take into account factors (1), (2), (5), (8) and (9). He may not have attached the same weight and reached the same conclusions that the local authority did in relation to those matters, but that in itself does not disclose an error of law. As Rix L.J. explained in Fryer-Kelsey v Secretary of State for Work and Pensions (reported as R(IB) 6/05), it is not the function of appellate courts (and thus also the Upper Tribunal) "to set the appeal tribunal to rights by teaching them how to do their job of weighing the evidence" (at paragraph 25).
22. The tribunal's Statement of Reasons does not make express reference to matters (3), (4), (6) and (7). However, these are all issues which go to either the credibility of the claimant and/or the commerciality of the agreement with the landlord, which the tribunal explained adequately. So, for example, it is true that the tribunal did not specifically refer to the absence of documentary evidence as to rent payments. However, the tribunal expressly accepted the claimant's oral evidence that payments of rent were made. The tribunal did not therefore need to refer to the fact that documentary evidence had not been produced. That was a matter for the tribunal to assess as part of the process of weighing the evidence.
23. I have considered the issue of credibility above. I also bear in mind that in the context of regulation 9 "the issue of whether or not there is a commercial basis is one of fact. True it is that this overall question involves weighing a number of factors – sub-facts so to speak. But everything in the evaluation is purely factual" (per Jacob LJ in Campbell & Others v South Northamptonshire District Council [2004] EWCA Civ 409, reported as R(H) 8/04). It is a well established general principle that the evaluation of the evidence is for the fact-finding tribunal (see R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 All E.R. 81 at 94F-G, per Diplock L.J.). It is accordingly not for the appellate court or tribunal to substitute its own view (see to similar effect Secretary of State for Work and Pensions v Roach [2007] EWCA Civ 1746, reported as R(CS) 4/07).
24. The tribunal judge evidently regarded the claimant's (temporary) care of the landlord after his accident and the joint loan applications as "unusual" and arguably the strongest pointers towards the tenancy agreement being non-commercial. However, he then explained how the particular circumstances of both those factors did not affect his finding on commerciality. The tribunal judge was not obliged to deal with every single point raised in relation to credibility. As Laws LJ noted in A.T. (Guinea) v Secretary of State for the Home Department [2006] EWCA Civ 1889, it was "elementary that the duty to give reasons does not entail a requirement that the fact-finding judge deal expressly with every point" (paragraph 17).
25. The difficulties of challenging findings of fact on a further appeal were emphasised by the Court of Appeal in Braintree District Council v Thompson [2005] EWCA Civ 178. Ward L.J., giving the judgment of the Court, explained as follows (at paragraph 19):

'19. It will be an error of law to find a fact if there is no evidence to support that finding… Findings of fact which are challenged as erroneous for being against the weight of the evidence do not involve any error of law. It only becomes an error of law if the finding of fact is perverse in the sense that no reasonable Tribunal could have reached that conclusion. An example of such perversity would be where the fact-finding body proceeded upon a blatant misunderstanding or in total ignorance of an established and relevant fact. It must be established that the Tribunal acted upon a wholly incorrect basis of fact but that only arises where the fact is plain and incontrovertible and where there is no room for difference of view about it.'

26. In the present case the local authority has fallen some way short of mounting a successful challenge on that basis. The tribunal's decision was certainly not perverse, especially in the light of its finding on credibility. I am also satisfied that it did not give undue weight to immaterial considerations – its reference to the parties' relationship as being platonic was part of the overall context. There was evidence in this case upon which a reasonable tribunal could act to arrive at the conclusion which it did. The related question then is whether the tribunal properly explained its reasoning.

The adequacy of the tribunal's reasoning

27. There is ample authority in the case law about the standards of reasoning expected of fact-finding tribunals in explaining their decisions. There is, for example, a helpful and realistic discussion by Mr Commissioner (now Judge) Rowland in CIB/4497/1998 (at paragraph 5):

'5. It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal's reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved … Those who assert that a tribunal's reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while "a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all", that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.'

28. It is also well established that when explaining how it has exercised its judgment, a first instance tribunal is not bound to deal with every matter raised in the case. As Tucker L.J. explained in Redman v Redman [1948] 1 All E.R. 333 at 334:

'I desire to emphasise as strongly as I can that the fact that judge or commissioner does not set out every one of the reason which actuate him in coming to his decision will not be sufficient to support an argument in this court that he has not applied his mind to the relevant considerations… The mere fact that, in his judgment, the commissioner may not have mentioned some fact or other or that he emphasised some other fact is quite insufficient to persuade me that he did not, in fact, apply his mind properly to the relevant matters which he does not in terms mention.'

29. Similarly, in a more recent decision in the matrimonial and family jurisdiction, Holman J. in B v B (Residence Order: Reasons for Decision) [1997] 2 F.L.R.602 (at 606) stated that:

'I cannot emphasise strongly enough that a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or thorough as it might otherwise be.'

30. A tribunal's Statement of Reasons is not usually an ex tempore (unreserved) judgment, but the observations of Holman J. are just as applicable to decisions of fact-finding tribunals as they are to decisions of courts of first instance.
31. This tribunal made a clear and categorical credibility finding in favour of the claimant which in my judgment is unimpeachable and central to its decision. The credibility finding underpinned the tribunal's conclusions on the nature of the relationship between the claimant and her landlord and its acceptance of her evidence about e.g. the rental agreement and the payment of rent. That amounted to "clear and overwhelming evidence" which was not undermined by the "unusual" features of the case. The tribunal evaluated the evidence and explained why those factors did not alter its conclusion.
32. My conclusion therefore is that the tribunal's decision discloses no error of law in this respect. It is important to read the decision as a whole. I am satisfied that this tribunal applied the correct legal tests, found facts that it was entitled to do on the evidence before it and provided adequate reasoning.

The regulation 9(1)(l) point

33. There is one remaining matter. The local authority's original decision letter referred solely to their conclusion that the tenancy arrangement was non-commercial in nature as the basis for the housing benefit overpayment decision. This justification was also repeated in the decision as stated on the submission to the tribunal. The decision maker's submission was also almost wholly addressed to this issue.
34. However, the decision maker also mentioned that if regulation 9(1)(a) on non-commerciality was found not to apply, then regulation 9(1)(l) should be considered. This provision excludes entitlement where "the liability was created to take advantage of the housing benefit scheme". However, there are just a few passing references to regulation 9(1)(l) in the extensive decision maker's submission. Nearly all of those 10 pages of closely typed A4 are devoted to arguing that there was no liability to make rental payments within regulation 8(1)(a) and, if there was, then the tenancy was non-commercial within the meaning of regulation 9(1)(a).
35. The local authority did not raise the regulation 9(1)(l) point in its grounds of appeal. However, in my directions on the appeal, I pointed out that the tribunal appeared to have made no express finding on the regulation 9(1)(l) issue. The local authority in their further submission argue that the tribunal's omission to do so amounted to an error of law, given that the test for regulation 9(1)(l) is not the same as for 9(1)(a).
36. I am not satisfied that the tribunal erred in law in this respect. The regulation 9(1)(l) point was buried in and very much subsidiary to the non-commerciality point. In an ideal world the tribunal should perhaps have disposed of that issue too and on that basis its omission to mention it might conceivably amount to an error of law. However, an error of law must be material in the sense that it would have made some difference to the outcome of the matter (as explained in reported decision R(I) 2/06).
37. In the present case, and notwithstanding the different considerations, I am entirely satisfied on the tribunal's findings of fact that it would also have decided that regulation 9(1)(l) did not apply. Indeed, given the findings of fact that supported its conclusion on regulation 9(1)(a), it would have arguably have been perverse for the tribunal to have found that regulation 9(1)(l) applied even though regulation 9(1)(a) did not. I bear in mind that the unusual nature of arrangements does not of itself justify a finding of contrivance in this respect (see reported decision R(H) 7/05). I therefore conclude that the tribunal's omission to deal with regulation 9(1)(l) does not amount to a material error of law.
38. For the avoidance of doubt, had I concluded that the tribunal's omission on this point did amount to an error of law, it would not affect the disposal of this appeal in any practical terms. The reason for that is that I would have re-made the decision to the same effect as the tribunal (section 12(2)(b)(ii) and (4) of the Tribunals, Courts and Enforcement Act 2007), drawing on the tribunal's findings of fact to justify the non-application of regulation 9(1)(l), or simply exercised my discretion not to set aside the tribunal's decision in all the circumstances of the case (section 12(2)(a) of the 2007 Act).

Conclusion

39. For the reasons explained above, the decision of the Basildon appeal tribunal does not involve any errors of law. I must therefore dismiss the local authority's appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007. The decision of the Basildon appeal tribunal stands.

Signed on the original Nicholas Wikeley

on 22 June 2009 Judge of the Upper Tribunal