Upper Tribunal (Administrative Appeals Chamber)

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[2009] UKUT 72 (AAC)(28 April 2009)
Housing and council tax benefits
other

IN THE UPPER TRIBUNAL Appeal No. CH/3524/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge: E A Jupp

This decision is given in exercise of the transitional provisions contained in paragraphs 2 and 3 of schedule 4 to the Transfer of Tribunal Sanctions Order 2008 which came into force on 3 November 2008.

DECISION

My decision is that the appeal tribunal ("the tribunal") erred in law in its decision given on 12 February 2008 under registration No. 008/07/02153. Accordingly, the claimant's appeal succeeds. Under section 12(2)(a) and (b)(ii) the Tribunals, Courts and Enforcement Act 2007 I set aside the tribunal's decision and substitute the decision which the tribunal should have made as follows:-

"By virtue of regulation 7(2)(i) and 8(14) of the Housing Benefit and Council Tax Benefit (Decisions & Appeals) Regulations 2001, the claimant is entitled to the appropriate increase in housing benefit and council tax benefit from the dates on which he became entitled to the relevant rates of disability living allowance."

REASONS FOR DECISION

The claimant is a man who has been in receipt of housing and council tax benefit for a number of years, because of his entitlement to incapacity benefit and industrial injuries benefit. As is usual, he was issued with a number of housing and council tax benefit notifications. These showed that the only income used in his assessment to both benefits was based on his awards of incapacity benefit and industrial injuries benefit. On 23 November 2005 the Authority carried out a verification visit to the claimant at his home to verify whether his income and the circumstances of his claim had changed. He duly signed a declaration form confirming that his only income was incapacity benefit and industrial injuries benefit and that he had one bank account. He would provide proof.

However when he did so on 26 March 2007, his letter stated that as well as being in receipt of incapacity benefit and industrial injuries benefit, he was also in receipt of disability living allowance (DLA). He asked for his claim to be reassessed. He said:

"I assumed that you were already aware of the disability living allowance I received as I get a disability premium, on my current housing benefit claim, of £23.95 per week."

On 18 April 2007 the Authority reassessed the claimant's claim to include his entitlement to DLA with effect from 2 April 2007. The decision was made under regulation 7(2)(a)(i) of the Housing Benefit & Council Tax Benefit (Decisions & Appeals) Regulations 2001 (the 2001 Regulations) (which provides for a decision to be made superseding earlier decisions where there has been a change of circumstances since the decision had effect), in conjunction with regulation 8(3) (which provides that where a change of circumstances is notified more than one month after it occurs (or such longer period as may be allowed under regulation 9) and the superseding decision is advantageous to the claimant, the date of notification of the change of circumstances shall be treated as the date on which the change of circumstances occurred).

The claimant, represented by his local law centre, appealed by letter on the grounds that the decision maker had not considered the change of circumstances under regulation 9(1) and 9(2) of the 2001 Regulations. The claimant's DLA award had changed a number of times over a short period, it was difficult for him to be clear on what was required from him, he suffered from depression and epilepsy and had difficulty coping. In the letter the claimant also made a formal application for an extension of time for making a late notification for a change of circumstances under regulation 9, which provides that a longer time may be allowed for the notification of a change of circumstances which affects the effective date where the reasons for the delay in notification are given and the application is made within 13 months of the date on which the change occurred. Under regulation 9(3) any such application shall not be granted unless the relevant Authority is satisfied that it is reasonable to do so and that there are relevant special circumstances as a result of which it was not practicable for the claimant to notify the change of circumstances within one month of the change. On the claimant's application for his DLA award to be taken into account with effect from 13 January 2004, the application would be out of time under regulation 9.

The law centre also submitted that full back-dating could be made under regulation 8(14) of the 2001 Regulations. This amendment was introduced with effect from 6 October 2003 and provides:-

"Where the decision is superseded in accordance with regulation 7(2)(i) the superseding decision shall take effect from the date on which entitlement arises to the relevant benefit referred to in regulation 7(2)(i)(ii) or to an increase in the rate of that relevant benefit".

The Authority reconsidered but did not revise the decision and in its letter of 5 June 2007 made no reference to regulation 8(14). The appeal continued.

In a written submission on behalf of the claimant it was submitted that a late application under regulation 9 was appropriate, based on its being made within 13 months of the change of circumstances, that is within 13 months of the award of the care component at the middle rate on 30 July 2006, the renewal award. If that were accepted, the superseding decision would take effect under regulation 8(2) rather than 8(3). However, the representatives also asked the tribunal to consider again full back-dating under regulation 8(14) of the 2001 Regulations to cover the period from 13 January 2004 to 12 January 2006.

A tribunal was first held on 10 December 2007 but adjourned, directing the Authority to lodge a further submission in response to that made on behalf of the claimant. The Authority responded with an amended copy of its original submission to the tribunal, adding that regulation 9 had been considered but was not applicable as the claimant did not meet the criteria as, although he had been in receipt of DLA since 13 January 2004, he had not reported the change until 26 March 2007.

As further copies of the documentation previously submitted are also in the file at that stage, I assume that they were also re-submitted by the Authority. If so, I can only describe the law centre's comment that it had received the "additional submissions" as having been made with commendable restraint. Many Authorities do not appear to appreciate that it does not in any way assist the resolution of the case if, when asked for a further submission, they simply repeat the documentation already sent. That documentation is already on the file. What is required is a positive effort to identify the required information within the documentation already submitted or to make additional submissions so that it will assist the tribunal to reach a proper conclusion. However, the law centre then responded that regulation 9 should apply because the award of the care component at the middle rate on 30 July 2006 should be taken as a change of circumstances, the claimant having been in receipt of the lowest rate of DLA for the period 12 January 2006 to 29 July 2006.

The tribunal was then held on 12 February 2008, neither party being present or represented. The tribunal confirmed the Authority's decision of 18 April 2007 recording on the decision notice that the claimant had a clear duty to notify change of circumstances which might affect his benefit, but despite being in receipt of varying rates of DLA from 13 January 2004, he had not notified receipt of his award until 26 March 2007. The tribunal found that the claimant had received assistance in the past from a number of people in respect of his claims to benefit and it was reasonable to expect him to obtain assistance in this matter. His particular circumstances did not make it impracticable for him to notify the change of circumstances within one month of its occurring. He was therefore entitled to DLA in his assessment for housing and council tax benefit only from 2 April 2007. This was amplified in the statement of reasons produced at the claimant's request, but no reference was made to Regulation 8(14).

The claimant sought leave to appeal on the grounds of the inadequacy of the tribunal's findings of fact and in its reasons for decision. The tribunal had not made a finding of fact on the claimant's statement that he believed he had notified the Authority of his award of DLA. The tribunal had made a finding of fact that there was evidence that the claimant had been notified that he must notify a change of circumstances but it was submitted there was no evidence of his being notified of this requirement. Further it was challenged that the claimant had no good reason for his delay in notification.

In granting permission to appeal I observed:

"As it appears that a supersession would be made under regulation 7(2)(i) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, by regulation 8(14), the effective date would be the date on which entitlement arises to the relevant benefit or to an increase of that benefit, regardless of whether the claimant has complied with the requirements for notification of change of circumstances".

Therefore in my case management directions, I directed the parties to inform the Upper Tribunal whether there was any objection to the decision being set aside solely on that ground and to the Upper Tribunal substituting a decision in the terms of my decision above.

The Authority has objected to this proposal. Initially, it referred solely to regulation 9, giving reasons as to why it took the view that the claimant was not entitled to have his notification changed more than one calendar month after the change occurred accepted. Eventually, the Authority was persuaded to make a submission on the point at issue, namely the effect of regulation 8(14). The Authority's submission is that regulation 8(14) should "be replaced" in these circumstances by regulation 8(3)(b) and (c) and "therefore does not apply".

There is however no provision in the legislation that the provisions of regulation 8(3) should take priority over 8(14). From the date it came into effect regulation 8(14) is mandatory. Because the claimant falls within the provisions of regulation 8(14), that is the paragraph which applies, and his housing benefit and council tax benefit are to be increased appropriately with effect from his entitlement to DLA. Regulation 9 does not fall to be considered in these circumstances. The tribunal was in error of law in failing to consider Regulation 8(14) despite a submission having been made on that point. For these reasons, as initially indicated, the claimant's appeal is allowed; there is nothing more to add and I am able to substitute my own decision under section 12(2)(a) and (b)(ii) the Tribunals, Courts and Enforcement Act 2007.

My substituted decision is therefore given in the terms I originally suggested, and the claimant's appeal succeeds.

(Signed)

E A Jupp

Upper Tribunal Judge

(Date) 28 April 2009