Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Bexleyheath appeal tribunal dated 13 October 2008 involved an error on a point of law, for the reasons given below, and is set aside. It is appropriate to re-make the decisions on the claimant's appeals against the Council's decisions dated 20 December 2007 and 23 April 2008 after making the necessary findings of fact (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a) and (4)). The decision in relation to the claim for housing benefit and council tax benefit with effect from 3 December 2007 is that the appeal is allowed and that the claimant is entitled to housing benefit and council tax benefit from and including that date on the basis that her income from earnings as an employed person was to be estimated to be £88.32 per week before deductions. The Council is to calculate the precise amount of entitlement on that basis and may also consider whether the decision making that award falls to be superseded for a change of circumstances prior to 30 March 2008 when it was overtaken by the award on 23 April 2008 of housing benefit and council tax benefit from and including 30 March 2008 (for instance, as the result of the claimant working any additional hours prior to 29 December 2007 and of her ceasing to be employed and to receive any earnings after that date). If there is any disagreement as to the result of the calculation of housing benefit and council tax benefit entitlement as at 3 December 2007 (but not as to any supersessions for change of circumstances) the case may be returned to me or to another judge of the Administrative Appeals Chamber of the Upper Tribunal for further decision. The effect of that re-made decision is that to remove any need for back-dating of entitlement of the award made on 23 April 2008 with effect from 30 March 2008, so that the appeal against the decision of 23 April 2008 is disallowed.

REASONS FOR DECISION

1. This appeal arises from a situation that must have arisen quite frequently, where a claimant in receipt of income support who was thereby "passported" to entitlement to housing benefit and/or council tax benefit (CTB) ceased to be entitled to income support and housing benefit/CTB on taking up temporary employment, so that a new claim for housing benefit/CTB was necessary before it could be decided whether the claimant was entitled to housing benefit/CTB on the basis of her income including the earnings from the new entitlement. It is clear enough that, by reason of regulation 77 of the Housing Benefit Regulations 2006 (the 2006 Regulations) (regulation 65 of the Council Tax Benefit Regulations 2006 - from now on I shall not refer to those Regulations where the effect is the same as for housing benefit), as still in force at the relevant date but revoked with effect from 6 October 2008, entitlement to housing benefit/CTB came to an end in such circumstances. There could then under regulation 72 and Schedule 7 be entitlement for certain claimants to an extended payment of housing benefit/CTB for up to four weeks without the need for a claim. The claimant here benefited from that entitlement. But on the expiry of the period of the extended payment a new claim for housing benefit/CTB had to be made. The main issue here is the operation of the regulations on the provision of evidence and information and when a claim is properly completed (discussed below). But there is also a more fundamental difficulty in applying the provisions on the calculation of earnings in such circumstances. It is convenient to set out here the housing benefit provisions on earnings from employment.

2. Section 130(1)(c) of the Social Security Contributions and Benefits Act 1992 makes entitlement to housing benefit depend on the amount of a claimant's income. Regulation 27(1)(a) of the 2006 Regulations requires income to be calculated on a weekly basis:

"(a) by estimating the amount which is likely to be his average weekly income in accordance with this Section and Sections 3 to 5 of the Part and Sections 1 to 3 of Part 7;"

Then, regulation 29(1) and (2) provides:

"(1) Where a claimant's income consists of earnings from employment as an employed earner his average weekly earnings shall be estimated by reference to his earnings from that employment--

(a) over a period immediately preceding the benefit week in which the claim is made or treated as made and being a period of--

(i) 5 weeks, if he is paid weekly; or

(ii) 2 months, if he is paid monthly; or

(b) whether or not sub-paragraph (a)(i) or (ii) applies, where a claimant's earnings fluctuate, over such other period preceding the benefit week in which the claim is made or treated as made as may, in any particular case, enable his average weekly earnings to be estimated more accurately.

(2) Where the claimant has been in his employment for less than the period specified in paragraph (1)(a)(i) or (ii)--

(a) if he has received any earnings for the period that he has been in that employment and those earnings are likely to represent his average weekly earnings from that employment his average weekly earnings shall be estimated by reference to those earnings;

(b) in any other case, the relevant authority shall require the claimant's employer to furnish an estimate of the claimant's likely weekly earnings over such period as the relevant authority may require and the claimant's average weekly earnings shall be estimated by reference to that estimate."

Paragraph (3) deals with the situation where the amount of a claimant's earnings changes during an award and allows the authority to make an estimate by reference to likely earnings over any period (not exceeding 52 weeks) as is appropriate.

The factual background

3. The claimant's entitlement to income support ceased on 29 October 2007 because she had started a temporary contract of employment with Woolworths as a sales assistant for a minimum of 16 hours a week on that date. Her regular entitlement to housing benefit/CTB therefore ceased for the reasons noted above, followed by entitlement for the "extended period" to 2 December 2007.

4. She signed a housing benefit/CTB claim form on 12 November 2007, which she apparently handed in at an office of the local authority on 16 November 2007. On the form she gave the start-date of her employment and stated that she worked for 16 hours per week, at £5.52 per hour, and was paid four-weekly. She also gave details of payments to her of working tax credit, child tax credit, in work credit and maintenance payments. At the bottom of the relevant pages was a printed note that the local authority had to see proof of any earnings before it could decide how much benefit could be paid. Part 11 of the form was a checklist of proof (original documents) being sent with the form. The part under the heading of proof of earnings was as follows (omitting some sentences about self-employment):

"This means your last 5 payslips if you are paid every week, your last 3 payslips if you are paid every 2 weeks, or your last 2 payslips if you are paid every month. If you do not have these payslips your employer can complete a certificate of earnings. Contact us if you require a certificate of earnings."

The claimant had ticked the box against that instruction.

5. The receipt form completed by an officer of the local authority on 16 November 2007 showed that the claimant had produced proof of child benefit, tax credits and maintenance, plus bank statements. It was recorded that a work contract had been received, but no tick in the box to say that payslips still had to be provided. What had been produced was a letter dated 27 October 2007 offering the claimant employment. She was contracted to work 16 hours per week and had agreed to work up to 20 hours as required. The starting rate of pay was £5.52 per hour, paid on a four weekly cycle. There was an indication in the clause on holiday entitlement that this was a temporary contract intended to last to 31 December 2007.

6. On 20 November 2007 a letter was sent to the claimant asking her to provide information, including "November and December's payslips as soon as you receive them", in order for the local authority to process the claim. It was stated that if a reply had not been received within a month of the date of the letter it would be assumed that she no longer wished to proceed with her application and the claim would be withdrawn.

7. The claimant did not reply. On 20 December 2007 a letter was sent to the claimant to say that her claim had been unsuccessful because either she had not made a claim for benefit in the correct way or she had not provided all the information that the local authority needed to make a proper decision on the claim. Notice was given of the right to appeal against the decision. No appeal was lodged at that time, but the claimant has said that she did not receive that letter.

8. Income support was awarded to the claimant with effect from 23 March 2008 on a new claim. There may have been some misdirection or at least confusion about having to wait to claim for that length of time after her employment came to an end on 28 December 2007, but I cannot in the present case make any rulings about that or about whether that income support claim could have been back-dated for any reason. The claimant had also indicated the wish to claim housing benefit/CTB and she signed the local authority's claim form on 14 April 2008. She stated that she wanted to claim benefit from 28 October 2007. She said that she was in arrears with her rent starting in October 2007 and was being taken to court. She wrote:

"I sent all of the proof to you via the Castle, I re-sent what you say you needed, you then closed my claim, I finished work on 28-12-07, I have proof of what I handed in, which has been ignored. I'm now battling with the Council, courts and you, as all my copy seems to have vanished."

Produced with the form was the claimant's P45 from Woolworths, showing her period of employment ending on 28 December 2007 and gross pay of £772.80, with £169.84 income tax deducted.

9. The claimant was awarded housing benefit/CTB from 31 March 2008. On 23 April 2008 a letter was issued notifying her of the refusal of backdating to cover the period from 28 October 2007 to 30 March 2008 as good cause for delay had not been shown.

10. The claimant appealed in a letter received on 15 May 2008, saying that she found the letter of 23 April 2008 unbelievable, as she had shown considerable cause and the local authority had lost her paperwork many times.

The appeal to the First-tier Tribunal

11. The local authority's written submission to the tribunal treated the decision under appeal as that of 23 April 2008, but the history above was described and it was submitted that the claim on the form handed in on 16 November 2007 had been defective, by reference to regulation 86(1) of the 2006 Regulations:

"(1) Subject to paragraph (2) and to paragraph 5 of Schedule A1 (treatment of claims for housing benefit by refugees), 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."

It was submitted that, as the result of that, her failure to respond to the decision notice of 20 December 2007 or to take steps to make her new claim until March 2008, the claimant had not shown good cause for the delay in claiming from 3 December 2007 (the relevant date since the extended payment ran to 2 December 2007).

12. The claimant did not attend the hearing on 13 October 2008, nor did any representative of the local authority. She had opted for a "paper hearing" on her questionnaire, but the local authority had requested an oral hearing. The claimant had apparently telephoned the clerk to the tribunal on 19 September 2008 to say that the venue in Bexleyheath was too difficult for her to get to without a car. I do not now need to go into whether the claimant was dissuaded from attending by being told that it did not matter if she was not there as the tribunal had all the papers and not being told about arrangements for meeting travel expenses, since I have concluded that the tribunal's decision must be set aside on other grounds.

13. The tribunal disallowed the appeal and confirmed the decisions of 23 April 2008. It accepted that the November 2007 claim had been properly closed under regulation 86(1) of the 2006 Regulations for the claimant's failure to supply the payslips asked for. It also accepted that she had not shown good cause for the delay in claiming in relation to the March 2008 claim, because of her failure to pursue the November 2007 claim or to contact the local authority before the new claim was made.

The appeal to the Upper Tribunal

14. The claimant now appeals against that decision with the permission of Judge Bano, given on 22 May 2009. As indicated in my directions dated 20 August 2009, after the case had been transferred to me following the first round of written submissions, I think that those submissions did not get to grips with the difficult legal questions that arise. I set out in detail how I saw the case and what legislation I considered relevant and directed further submissions. The local authority made short submissions on the specific questions that I had identified, but mainly in terms of the outcome on the facts, rather than by way of comment on the wider legal issues. The claimant's representative, Kathy James of Tunbridge Wells Citizens Advice Bureau, took matters somewhat further, but with much the same focus. The local authority requested an oral hearing "to be attended by our presenting officer". Mrs James's view in her reply dated 16 November 2009 was that an oral hearing was not necessary, but that if one was ordered counsel would be able to appear through the Free Representation Unit. Since the local authority has not yet approached this case with the necessary level of legal input, I am not sure that a hearing with its presenting officer would produce on the part of the local authority anything more than further reinforcement of the arguments on the facts, rather than focused legal analysis. As I have formed a clear view of the legal position and it is desirable not to impose any further delays, I refuse the request for an oral hearing.

The decision(s) under appeal to the tribunal of 13 October 2008

15. In paragraph 2 of the directions of 20 August 2009 I said this:

"The reasons for giving permission suggested first that it was arguable that the claimant's appeal in her letter dated 10 May 2008 should have been treated as including an appeal against the decision dated 20 December 2007 as well as against the decision dated 23 April 2008 refusing backdating of the April 2008 claim to 3 December 2007 or before. Unpacking that a little, the argument starts with the proposition that the claim made on the form signed on 14 April 2008, because it clearly raised the question of entitlement back to October 2007, could and should have been treated not only as a request for backdating of the new claim but also as a request for revision or supersession of the decision dated 20 December 2007 that the claimant was not entitled to housing benefit or council tax benefit with effect from 3 December 2007. There is support for such a general approach in paragraph 17(iii) of the decision of the Tribunal of Commissioners in R(SB) 9/84. The Council's letter dated 23 April 2008 (page 37) could then be interpreted as impliedly including a refusal of the request for revision or supersession of the decision of 20 December 2007, as well as a refusal to backdate the April 2008 claim, and the claimant's appeal as including all those matters. That would seem to avoid the potential problem that an appeal lodged in May 2008 against a decision dated 20 December 2007 would be late."

16. In her reply of 16 November 2009 Mrs James for the claimant agreed with that analysis, the local authority having made no comment. The point on lateness is that under regulation 18(3) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, as still in force in April 2008, if an application for a revision of a decision under regulation 4(1)(a) is refused, a new month for appealing against the decision begins to run from the date of the notification of the refusal. Here, the April 2008 claim, although made outside the normal one month for applying for revision under regulation 4(1)(a), was made within the maximum period of extension for a late application within regulation 5, so that the claim can be regarded as including such an application and the decision of 23 April 2008 as including a refusal to revise the decision of 20 December 2007. Accordingly, the tribunal of 13 October 2008 could and should have regarded the claimant's appeal as including a direct appeal against the decision of 20 December 2007. In so far as the tribunal recorded a decision only on the appeal against the decision of 23 April 2008 it erred in law, although it did look at the correctness or otherwise of the decision of 20 December 2007.

17. However, in relation to the appeal against the decision of 20 December 2007, the tribunal would have been restricted by the effect of paragraph 6(9)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (the 2000 Act) to considering the circumstances obtaining on 20 December 2007 and not later circumstances.

The estimation of likely average weekly income

18. How do the provisions set out in paragraph 2 above apply on the claim received by the local authority on 16 November 2007? As at the beginning of the benefit week containing that date, the claimant had been employed by Woolworths for only two weeks. The provisions of regulation 29 of the 2006 Regulations on the average weekly earnings of employed earners therefore need careful scrutiny. Regulation 29(1)(a) is unhelpful in specifying only payment weekly or monthly as the alternatives, when plainly employees can be paid at many other intervals. It seems to me that, taking a common sense view to allow the regulation to work in practice, payment four-weekly must be equated in substance to payment monthly, so that regulation 29(1)(a)(ii) is to be taken as referring to a period of two lots of four weeks, as well as to two months. On that basis, the claimant would have been in employment for less than the period specified in regulation 29(1)(a)(ii) if the relevant date is 16 November 2007 (date of claim), 3 December 2007 (start of period for which award could be made on the claim and claim treated as made in previous benefit week (regulation 83(10)) or 20 December 2007 (date of decision). Accordingly, the opening words of regulation 29(2) require that its provisions apply instead of those of regulation 29(1).

19. As at 16 and 20 November 2007, the claimant would not have received any earnings, so that regulation 29(2)(b) would have to apply. That requires the local authority, not the claimant, to obtain an estimate of likely weekly earnings from the employer. That seems consistent with the overall emphasis of the legislation in making the calculation of entitlement turn on an estimation of likely future average earnings, informed by evidence as to actual earnings in a past period only where such evidence is available and likely to be a reliable predictor of the future. However, by 3 December 2007, the first day of any potential award of housing benefit/CTB on the claim (the period down to 2 December 2007 already being covered by the extended payment) the claimant ought to have received some earnings from Woolworths. From the date of receipt onwards, regulation 29(2)(a) would apply. The earnings shown in the payslip that everyone has assumed would have been issued around the end of November 2007 could then have been taken to represent average weekly earnings, provided that they were likely to continue at a similar level from the date of receipt onwards. There is no need in the present case to decide whether, if earnings have been received before the decision is made on a claim, regulation 29(2)(a) can also have effect for a period prior to their receipt.

What information or evidence was the local authority allowed to require from the claimant on 20 November 2007?

20. The relevant provisions include, in my judgment, regulation 83 of the 2006 Regulations, not merely regulation 86(1) (see paragraph 11 above and paragraphs 27 to 29 below), which applies only once a valid claim has been made. Regulation 83(1) and (6) to (9), as in force at the relevant time, was as follows:

"(1) Subject to paragraph (4A) [telephone claims], every claim shall be in writing and made on a properly completed form approved for the purpose by the relevant authority or in such written form as the relevant authority may accept as sufficient in the circumstances of any particular case or class of cases having regard to the sufficiency of the written information and evidence.

(6) Where a claim received at the designated office has not been made in the manner prescribed in paragraph (1), that claim is for the purposes of these Regulations defective.

(7) Where the claim is defective because--

(a) it was made on the form approved for the purpose but that form is not accepted by the relevant authority as being properly completed; or

(b) it was made in writing but not on the form approved for the purpose and the relevant authority does not accept the claim as being in a written form which is sufficient in the circumstances of the case having regard to the sufficiency of the written information and evidence,

the relevant authority may, in a case to which sub-paragraph (a) applies, request the claimant to complete the defective claim or, in the case to which sub-paragraph (b) applies, supply the claimant with the approved form or request further information or evidence.

(8) The relevant authority shall treat a defective claim as if it had been validly made in the first instance if--

(a) where paragraph (7)(a) applies, the authority receives at the designated office the properly completed claim or the information requested to complete it or the evidence within one month of the request, or such longer period as the relevant authority may consider reasonable; or

(b) where paragraph (7)(b) applies--

(i) the approved form sent to the claimant is received at the designated office properly completed within one month of it having been sent to him; or, as the case may be,

(ii) the claimant supplies whatever information or evidence was requested under paragraph (7) within one month of the request,

or within such longer period as the relevant authority may consider reasonable.

(9) A claim which is made on an approved form for the time being is, for the purposes of this regulation, properly completed if completed in accordance with the instructions on the form, including any instructions to provide information and evidence in connection with the claim."

21. Although the structure created by those provisions looks relatively straightforward at first sight, a number of serious difficulties emerge on closer examination, some of which affect the present case. Here, the claim received on 16 November 2007 was made on the currently approved form. But was it properly completed? The local authority took the view at the time that it was not, which led to the sending of its letter of 20 November 2007. However, I have no doubt that when regulation 83(7)(a) refers to a form not being accepted by the relevant authority as properly completed it does not make the authority the sole arbiter of whether that is so or not. If the question arises before a tribunal in an appeal against a decision that the claimant is not entitled to benefit because of a failure to make a claim complying with regulation 83(1), the tribunal is required to make an independent judgment whether the form was properly completed or not.

22. In the present case, the form cannot be regarded as not having been properly completed by reason of the failure to accompany the form with payslips. Under the precise terms of the checklist in Part 11 of the form (see paragraph 4 above) only payslips that the claimant already had were required. That is in accordance with the test properly to be applied under regulation 29(2)(a) (see paragraphs 18 and 19 above) and one would in any case interpret instructions wherever possible so as not to require a claimant to produce information or evidence that was not in existence. In those circumstances the checklist appeared to instruct the claimant to contact the local authority about getting a certificate of earnings from her employer. However, as noted above, regulation 29(2)(b) puts the obligation to obtain an estimate of earnings (which I think is probably a different thing from a certificate of earnings) on the local authority. In my judgment, the local authority here was not entitled to put the burden of asking the employer for an estimate onto the claimant. The claim form cannot be regarded as not having been properly completed by reason of a failure specifically to ask the local authority about a certificate of earnings. The claimant had in substance brought to the attention of the local authority the circumstances giving rise to the authority's obligation to obtain an estimate from the employer by stating on the claim form the date on which her employment had started and that she would be paid four-weekly, as confirmed by the offer letter.

23. In any event, the local authority already had what was as good as an estimate of earnings from the employer in the form of the letter from Woolworths offering the claimant employment. The estimate to be given under regulation 29(2)(b) of the 2006 Regulations is of likely weekly earnings. Although there was a possibility of the claimant being asked to work for up to an additional four hours per week, the plain indication of likely weekly earnings was £88.32 (16 x £5.52). In my judgment, the plain intention of regulation 29(2)(b) in its context (which is to base the calculation of entitlement on forward estimates of earnings) is to allow housing benefit/CTB to be awarded to a claimant who has just started work without the delay of having to wait until some actual earnings have been received. In the present case, there was absolutely no reason why housing benefit/CTB could not have been awarded on 16 or 20 November 2007 on the basis of an estimate of likely earnings as above, with the claimant then clearly being instructed to inform the local authority if she earned more than £88.32 gross in any week or asked to produce subsequent payslips to confirm the position. Even then, there would not automatically be an adjustment of the amount of entitlement for the week in question under regulation 29(3). There should merely be a new estimate of likely earnings.

24. Although the P45 was not issued until after the date of the decision in this case, it provides cogent evidence of what the claimant earned in the period before that date. It reinforces the accuracy of the estimate constituted by Woolworths' letter offering employment. The claimant was employed for nine weeks and earned £772.80 gross, while 9 x £88.32 is £794.88. There would have been public holidays towards the end of the period of nine weeks, for which she may or may not have been paid under her contractual holiday entitlement, but the total received suggests that she did not have weeks of higher earnings by reason of working additional hours.

25. Accordingly, I conclude that on receipt of the claim form with accompanying documents on 16 November 2007, the claim was properly completed for the purposes of regulation 83(1) of the 2006 Regulations, so far as the claimant's earnings were concerned. The letter of 20 November 2007 also asked for two months' bank statements and for proof of child maintenance received. However, the local authority's receipt of 16 November 2007 had ticks in the boxes for proof of maintenance and for the latest two months of bank statements and building society statements. Although only one page of a bank statement was copied in the papers before the tribunal (which incidentally included a payment-in of maintenance of the amount stated by the claimant), in my view it can only be concluded that the claimant had provided the information and evidence on those matters required by the instructions on the claim form.

26. As a result, the local authority was not entitled on 20 November 2007 to regard the claim received as defective or to request any further information or evidence under regulation 83(7)(a). Nor was it entitled to disallow the claim on 20 December 2007 on the ground that it was defective. Therefore, if the tribunal had recorded a decision on the appeal against the decision of 20 December 2007, it could not have confirmed that decision on the grounds on which it was made. That reinforces the error of law in not recording a decision on that appeal and indicates a separate error in determining the appeal against the decision of 23 April 2008 on the basis that the Council had been entitled to disallow the claim made on 16 November 2007 as defective.

The effect of the letter of 20 November 2007

27. What then, if the local authority could not request information under regulation 83(7)(a) of the 2006 Regulations, was the effect of the local authority's letter of 20 November 2007? It seems to me that it could then, subject to the points below about its wording, be regarded as a reasonable requirement for documents or evidence under regulation 86(1). Even though the evidence and information supplied with the claim justified an award from 3 December 2007 on the basis of an estimate of likely weekly earnings at 16 x £5.52, there could be a later change in the estimate on the evidence of actual earnings received. Accordingly, it was reasonable to ask for the November and December payslips as soon as they were received, although in my view it was not reasonable to ask for further bank statements or evidence of child maintenance payments.

28. The claimant did not send in any payslips. However, the consequence of that could not have been the withdrawal of the claim on the assumption that the claimant did not wish to proceed with it. Even if the letter of 20 November 2007 had been properly issued under regulation 83(7)(a), that could not have followed. There would have to have been a decision to disallow the claim. Standard wording of this kind is still often seen in letters from local authorities, apparently left over from a much earlier and mistaken view of the law, and should no longer be used. The excuse of not being able to change the letters provided in computer packages has run out of whatever validity it once had. As it is, the continued use of such language gives the appearance of an attempt to intimidate claimants by misstating the legal position.

29. If the letter of 20 November 2007 is regarded as a reasonable requirement under regulation 86(1) of the 2006 Regulations, the rest of regulation 86 says nothing about the consequences of non-compliance. Instead, one must turn to regulations 13 and 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 on suspension of payment and termination of entitlement for failure to comply with information requirements. However, through the definition of "information requirement" in paragraph 14 of Schedule 7 to the 2000 Act, those provisions are limited to cases where information is required to decide whether a decision should be revised or superseded, so can only be used after an initial award has been made. Thus, if the local authority here had on 16 or 20 November 2007, as it ought to have done, made a decision awarding the claimant housing benefit/CTB from 3 December 2007 on the employer's estimate of earnings, there could have been a sanction for a failure to comply with the information requirement in the letter of 20 November 2007. But even then there would have to be a suspension of payment and a further failure to comply with the information requirement before entitlement could be terminated under regulation 14. The consequence is that, if a local authority requests information or evidence before an initial decision has been made on the claim, in circumstances in which regulation 83(7)(a) cannot be invoked, there appears to be no direct sanction for a failure to comply. The sanction is the indirect one that if a claimant does not come forward with sufficient evidence to support her claim the decision may be that she has not shown that she is entitled to benefit. But that would only bite if the information given by a properly completed claim was not sufficient to allow an award to be made, which is not the case here.

Conclusion on the appeal to the Upper Tribunal

30. The decision of the tribunal of 13 October 2008 must be set aside for the errors of law specified in paragraph 26 above. It is then clearly appropriate, on the view I have taken on the law, for me to substitute ("re-make") the decisions on the claimant's appeal against the decisions of 20 December 2007 and 23 April 2008. There is now clear evidence of the claimant's earnings in the relatively short period in issue and there appears to have been no difficulty in the other elements of entitlement down to 2 December 2007 and from and including 31 March 2008.

31. In relation to the appeal against the decision of 20 December 2007, which formed part of the appeal before the tribunal of 13 October 2008 for the reasons explained in paragraphs 15 to 17 above, the appeal must be allowed. The claim could not be disallowed on the ground that the claim received on 16 November 2007 was not made in accordance with regulation 83(1) of the 2006 Regulations. Then, either on the basis of the estimate of earnings constituted by Woolworths' letter offering employment or of the now existing evidence as to the payments of earnings made before 20 December 2007 (regulation 29(2)(a) or (b)), the claimant's entitlement to housing benefit/CTB is to be calculated on the basis that her average weekly earnings, before deductions, are estimated at £88.32. Accordingly, I award the claimant housing benefit/CTB from and including 3 December 2007 on that basis, leaving it to the local authority to calculate the precise amount of entitlement after the claimant's other income has been take into account, subject to the case being returned to the Administrative Appeals Chamber of the Upper Tribunal in the case of disagreement as to the result of the calculation. I cannot in making that award take account of circumstances that occurred after 20 December 2007, in particular the ending of the claimant's employment on 28 December 2007 and the consequent reduction in her average weekly income. That and any other change of circumstances prior to 31 March 2008 must be taken into account by the local authority by way of supersession of my decision.

32. Since it appears very unlikely that any change of circumstances after 20 December 2007 would operate to reduce or remove the amount of the claimant's entitlement to housing benefit/CTB, the award made above makes it unnecessary for there to be any back-dating of the award made with effect from 31 March 2008 by the local authority's decision of 23 April 2008. Accordingly, the claimant's appeal against that decision is disallowed.

33. The formal decisions giving effect to those conclusions are set out at the beginning of this document.

(Signed) J Mesher

Judge of the Upper Tribunal

Date: 19 January 2010