Upper Tribunal (Administrative Appeals Chamber)

Leicester City Council [2009] UKUT 155 (AAC) (07 August 2009)
Housing and council tax benefits
council tax benefit
Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (held at Leicester on 27 November 2008 under reference 038/08/02297) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the date of the claimant's claim for council tax benefit is 6 July 2006 and her entitlement is to be determined from a date 12 months before that date.

The time for applying for permission to appeal to the Court of Appeal is shorten to one month from the date when this decision is issued to the parties under rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No2698).

Reasons for Decision

A. The issue and how it arises

1. This case raises a difficulty issue on the interpretation and application of the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (SI No 216). I shall call these inelegantly titled regulations 'the Council Tax Benefit Regulations'.
2. It arises in this way. The claimant completed a claim for state pension credit and, at the same time, a claim for council tax benefit. Her claim for state pension credit was accepted by the Secretary of State as made in July 2007 and she was awarded a credit from July 2006. Her claim for council tax benefit was accepted by the local authority as made in February 2008 and she was awarded benefit from February 2007.
3. The issue that arises from those simple facts is: when does the claimant's entitlement to council tax benefit begin? February 2007? July 2006? Or earlier?

B. Representation

4. This deceptively simple question has resulted in detailed and erudite arguments from Andy Miles, the local authority's appeals officer, and from Andrew Millar, the authority's supervising welfare rights officer, on behalf of the claimant. I am grateful to both of them for the quality of their arguments on the correct analysis of the legislation. I expected that the Secretary of State would wish to be a party to the proceedings before the Upper Tribunal, but my suggestion was rebuffed.

C. The claim for state pension credit

5. The claimant is her in 80s, having been born on 14 May 1920. On 4 July 2007, her representative asked the Pension Service to visit and assist her to make claims for state pension credit (from 2006) and council tax benefit (from 2005). This visit did not take place until 21 February 2008, when claim forms for both benefits were completed.
6. The claimant was duly awarded a state pension credit comprising a guarantee credit from 6 July 2006. From that date, it is possible to work out when the claim was made. An award can be made for a period of 12 months before the date of claim: regulation 19(1) of, and paragraph 12 of Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987. (I call these 'the Claims and Payments Regulations'.) That puts the date of claim in July 2007, which is when the Pension Service was contacted.
7. Mr Millar has argued that the claim was made by telephone in July 2007. The reason for this argument becomes clear later. I reject his argument. All that happened in July 2007 was that the Pension Service was notified of the claimant's intention to make a claim and asked to visit in order to complete a form. As no details were taken over the telephone, the date of claim cannot have been fixed under regulation 4F(2)(b) of the Claims and Payments Regulations. The only possibility is that it was fixed under regulation 4F(3). And this assumes that the Secretary of State allowed more than one month in which to make the claim following the notification. That is a reasonable assumption, as the delay was a result of the claimant's ill health.

The claim for council tax benefit

8. I come now to the claim for council tax benefit. As I have said, this was completed at the same time as the claim for state pension credit. The claim form is headed A claim for Housing Benefit and Council Tax Benefit for pensioners. It is only three pages long and asks for the minimum of information. In particular, the claim form did not ask the date from which the claim was made or provide any space for this to be included. The form is, as its name shows, intended for use only by pensioners. The (limited) nature of its contents shows that it is intended to be used in connection with a claim for state pension credit, which will record more detailed information about the claimant's circumstances.
9. The completed council tax benefit form was received by the local authority on 26 February 2008. That is the date the authority used as the date of claim.
10. I now come back to Mr Millar's argument that the claim for state pension credit was made by telephone in July 2007. He wanted to establish this, because a person who is claiming state pension credit in accordance with regulation 4D(6A) of the Claims and Payments Regulations may make a claim for council tax benefit to the Secretary of State under regulation 53(4B) of the Council Tax Benefit Regulations. Consequently, if the claim for state pension credit was made in July 2007, so was the claim for council tax benefit. However, the evidence shows that the claimant did not claim by telephone and, as I have explained, the effective date of the award of state pension credit shows confirms that.
11. Once it had been notified of the award of state pension credit, the local authority, on 25 March 2008, awarded council tax benefit from 26 February 2007. That date was 12 months before the date of receipt of the claim form.

D. The appeal to the tribunal

12. The claimant exercised her right of appeal. The local authority's submission on the appeal stated it had awarded benefit from 26 February 2007 'having accepted that the claim was made in respect of 21 February 2007, the date 12 months prior to the actual claim date.'
13. The tribunal allowed the appeal, deciding:

'1) The claim for Council Tax Benefit received at the Local Authority on 26/02/208 is to be accepted as made on 04/07/2007.

'2) The effect of regulation 53(5)(a) of Council Tax Benefit (SPC) Regulations means that the entitlement to Council Tax Benefit begins on 03/07/2006.'

14. The presiding judge gave the local authority permission to appeal to the Upper Tribunal against that decision.

E. The tribunal's decision was wrong in law

15. I have already explained why the first part of the tribunal's decision is wrong. There was no basis on which it could treat the claim for council tax benefit as made on 4 July 2007.
16. The second part of the decision is also wrong. In order to explain why I have to set out and analyse the relevant legislation.

F. The legislation

17. Council tax benefit is governed by section 131 of the Social Security Contributions and Benefits Act 1992. Its administration is governed by the Social Security Administration Act 1992.

Claims

18. A claimant is not entitled to council tax benefit until a claim has been made. Section 1(1) of the Social Security Administration Act makes general provision for this:

'1 Entitlement to benefit dependent on claim

(1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied-

(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

(b) he is treated by virtue of such regulations as making a claim for it.'

Section 6(1) of the Act makes specific provision for claims of council tax benefit:

'6 Regulations about council tax benefits administration

(1) Regulations may provide as follows as regards any council tax benefits-

(a) for requiring a claim for a benefit to be made by such person, in such manner and within such time as may be prescribed;

(b) for treating a claim made in such circumstances as may be prescribed as having been made at such date earlier or later than that at which it is made as may be prescribed; ...'

19. Those provisions require a claim to be made and for it to be made within a particular time. They establish a link between entitlement and the making of a claim in that the latter is a condition precedent for the former. However, they do not provide for the date from which entitlement begins.
20. Regulation 53 of the Council Tax Benefit Regulations provides for the date of claim:

'53 Time and manner in which claims are to be made

…

(5) Subject to paragraph (12), and to regulation 54 (date of claim where claim sent or delivered to a gateway office) the date on which a claim is made shall be-

(a) in a case where an award of state pension credit which comprises a guarantee credit has been made to the claimant or his partner and the claim for council tax benefit is made within one month of the date on which the claim for that state pension credit which comprises a guarantee credit was received at the appropriate DWP office, the first day of entitlement to state pension credit which comprises a guarantee credit arising from that claim;

…

(e) in any other case, the date on which the claim is received at the designated office or authorised office, county offices or appropriate DWP office.'

I have removed what appears to be a superfluous comma after 'entitlement to' in subparagraph (a).

21. Translating regulation 53(5)(a) into simpler English: if a claim is submitted within one month of the claim for state pension credit, the date of that claim is the date from which the award of that credit begins. Mr Millar has argued that this provides for the date from which entitlement begins. That is not correct. It merely provides for the date of claim. I come to entitlement later.
22. Regulation 53(5) expressly provides what the date of claim shall be. It does not provide for a date to be treated as the date of claim. Mr Miles has distinguished between the actual and deemed dates of a claim, arguing that the former is fixed by statute and the latter by regulations. He does not identify where statute so provides and I am not aware of any provision. The closest provision is section 6(1)(b), which assumes that there is a date on which a claim is made. Presumably Mr Miles is referring to the date of receipt of the claim form. However, that begs some questions. Received where and by whom? From whom? When? In what form? With what content? The date on which a claim is made is not a question of fact that is determined by the date of receipt. It is a date determined by law on the basis of decisions on a complex of interrelated issues that are indicated by the questions I have just posed. It is a legal consequence that follows from a particular package of facts, one of which may be the date of receipt of the claim form. As I read section 6, the date of claim is fixed as part of the provision relating to manner and time under section 6(1)(a). Section 6(1)(b) then authorises regulations to provide for a date other than that date to be treated as the date of claim.
23. I can demonstrate this by reference to regulation 53(5) and (13). Regulation 53(5) provides what 'the date on which a claim is made shall be'. Regulation 53(13) concerns claims for a past period and provides that the 'claim in respect of that period shall be treated as made on'. The former is made under section 6(1)(a); the latter under section 6(1)(b). If Mr Miles is right, regulation 53(5)(e) merely repeats what statute already provides. Paragraph (13) has now been revoked and was, anyway, redundant in view of regulations 53(1ZA) and 56, which I come to next. However, it is useful example of the distinction.
24. Regulation 53(1ZA) deals in form with the date of claim, but in substance it deals with the start of entitlement:

'(1ZA) The prescribed time for claiming council tax benefit is as regards any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to council tax benefit, that day and the period of 12 months immediately following it.'

Regulation 56 is to the same effect. The period has since been reduced from 12 months to three months. The effect of those provisions is to give a claimant 12 months in which to make a claim from the time when the other conditions of entitlement to council tax benefit are satisfied. It allows the claimant to delay without having to satisfy any other conditions, such as the continuous good cause test used in regulation 53(13). Put differently, a claim for council tax benefit may be made in respect of any period up to 12 months before the date of claim.

Entitlement

25. Section 6(1)(l) of the Social Security Administration Act provides for regulations to deal with entitlement:

'6 Regulations about council tax benefits administration

(1) Regulations may provide as follows as regards any council tax benefits-

...

(l) for the day on which entitlement to a benefit is to begin or end; ...'

And section 131(2) of the Social Security Contributions and Benefits Act provides:

'(2) Council tax benefit-

(a) shall not be allowed to a person in respect of any day falling before the day on which his entitlement is to be regarded as commencing for that purpose by virtue of paragraph (l) of section 6(1) of the Administration Act; ...'

26. Regulation 48 of the Council Tax Benefit Regulations provides for entitlement:

'48 Date on which entitlement is to begin

(1) Subject to paragraph (2), any person by whom or in respect of whom a claim for council tax benefit is made and [who] is otherwise entitled to that benefit shall be entitled from the benefit week following the first day in respect of which that claim is made.'

I have inserted 'who' in order to make the sense clearer.

27. The second reference to 'in respect of' caters for the possibility that the claim may have been made in respect of a period up to 12 months before the date of claim.

G. Mr Miles' argument on the effective date

28. Mr Miles' argument is this. Regulation 48 deals with entitlement; regulation 53 deals with the date of claim. For many benefits, the start of entitlement depends on the date on which the claim was made or treated as made. However, under the Council Tax Benefit Regulations, the start of entitlement is not linked to the date of claim. It is linked to the date in respect of which the claim was made. And that is the actual date of claim, the date of receipt, not the date fixed by regulation 53. The latter does not deal with or affect entitlement.
29. I asked Mr Miles how he identified the date in respect of which the claim was made, especially as the claim form does not make provision for this. His answer was that the local authority used the date most favourable to the claimant, usually the maximum period of 12 months.

H. Analysis

30. I have already explained why I reject Mr Miles' argument on the date of claim. I can deal with the remainder of his argument by analysing the issues that arise under the legislation I have quoted in logical order.
31. Did the claimant make a claim for council tax benefit? The claimant was not entitled to council tax benefit until she had made a claim. Her claim form was submitted in February 2008. Making a claim is a condition precedent for an award. She satisfied that condition.
32. What was the date of claim? That is determined by regulation 53(5)(a). In this case, the claim was made within one month of claim for state pension credit. An award was made on the claim, so the date of claim is the effective date of that award, 6 July 2006.
33. What is the earliest date of entitlement? That is determined by regulations 53(1ZA) and 56. It is 12 months before the actual date of claim.
34. What is the actual effective date? This is determined by regulation 48. It is the first day of the benefit week following the first day in respect of which the claim was made. The claimant may specify a date from which the claim is made. If so, that is the effective date, provided the other conditions of entitlement are satisfied. If the claimant does not specify a date, the local authority has two choices. It may ask the claimant to specify the date. Or it may take the most favourable date, which is the maximum of 12 months. In this case, we know that the claimant wanted to claim council tax benefit from 2005.
35. This analysis produces an outcome that is very generous to claimants. That is not a reason for rejecting it. No one can have missed the publicity about low take up of entitlement to council tax benefit and benefits for pensioners generally. The legislation clearly allows generous periods within which to claim, although they have now been significantly reduced, and my analysis is merely the logical consequence of the provisions.

I. Disposal

36. I allow the appeal, set aside the tribunal's decision and give the decision that the tribunal should have made. Although this appeal was made by the local authority, my decision is more favourable to the claimant than the decision against which the appeal was brought.
37. In view of the claimant's age and financial circumstances, I consider that it is fair and just to shorten the time in which the local authority may apply for permission to appeal against this decision.

Signed on original on 7 August 2009

Edward Jacobs Upper Tribunal Judge