Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CH/2469/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 6/5/09 under reference 242/08/12961 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1 The appellant appeals the decision of the First-tier Tribunal (Social Entitlement Chamber) tribunal with my permission. The tribunal dismissed the appeal and confirmed the respondent Authority’s decision that her claim for CTB could not be backdated because she had not shown continuous good cause throughout the period for which she had requested backdating.

2 I granted permission to appeal on two grounds (i) that the tribunal had not addressed issues raised by the appellant’s representative in its submission to the tribunal dated 23/2/09 (pp109-110) and (ii) had applied a purely objective test in determining whether the appellant had established good cause for her failure to claim CTB earlier than she did. The Authority agreed that the mistake over the test to be applied was sufficient reason to set the decision aside, but thought that the submission at pp 109 – 100 represented the grounds put to the Upper Tribunal on further appeal. That is not right. That submission was sent by fax to the First-tier tribunal on 23/2/09 with a covering letter stating that it was for the hearing on 25/2/09. As it happens, that hearing was adjourned, and the appeal was finally heard on 6/5/09.

3 The factual background is that the appellant, who had lived in Haringey and claimed HB and CTB there for a good number of years, was placed by Haringey Council in a property in the London Borough of Islington. Having placed her in a property in another borough, Haringey remained the responsible Authority for paying HB. The appellant filled in a Haringey combined HB/CTB claim form and was awarded HB. She was, however, liable for Council Tax in the London Borough of Islington, and that was the Authority to which she should have applied CTB. Having filled in the combined form in Haringey, the appellant thought that she had done what was necessary to secure her benefits. The appellant subsequently began to receive Council Tax demands from Islington but delayed from 9/9/07 (the date she moved in) to 1/6/08 in claiming CTB from Islington. She claimed that she did not understand what was happening, spoke no English, relied on her children who did not seem to grasp the problem, visited Haringey several times to make enquiries, and finally got advice from a Somali advice centre. She put all of this forward to the tribunal as establishing good cause.

4 The tribunal did not find any facts about the circumstances in which the appellant moved into the property or take say anything about the confusion that might have occurred by having to make claims to two Authorities where previously one claim sufficed. The tribunal considered it to be the appellant’s responsibility to know the rules and regulations and applied an objective test having regard to ‘all of the circumstances of the case’. It was not sufficient that the appellant’s delay was understandable. It had to have been reasonable. The tribunal took into account and rejected as providing good cause the appellant’s language problems and asserted illness as a reason for her delay. That was, of course, a matter for the tribunal since ‘good cause’ is a question of fact: Chief Adjudication Officer v Upton [1997] 2 CLY (CA) 4668; see also paragraph 4 of CH/2659/2002.

5 However, I consider that the tribunal went wrong in law in the way it went about deciding whether good cause was established. It applied an objective test and also misdirected itself about the appellant’s responsibility ‘to know the rules and regulations.’

6 The starting point is the test laid down in the regulations: Regulation 69(14) of the Council Tax Benefit Regulations 2006, which has its equivalent in the Housing Benefit Regulations 2006, regulation 83(12), provides:

‘Where the claimant makes a claim in respect of a past period (“a claim for backdating”) and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on

(a) the first day from which he had continuous good cause; or

(b) the day 52 weeks before the date of the claim for backdating,

whichever fell later.’

7 The meaning of good cause for the purposes of the regulations was examined R(S)2/63T where a Tribunal of Commissioners decided in that good cause means:

“ … some fact which, having regard to all the circumstances including the claimant’s state of health and the information which he had received and that which might have been obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did”.

8 This test, however, is problematic for a variety of reasons:

a. The test does not reflect the language used in the relevant regulations, which refer to ‘the claimant’ and ‘good’ cause, and not to ‘a reasonable person’ and what he would have done – CH/2198/2008;

b. By introducing ‘all the circumstances,’ including personal characteristics, into the test of reasonableness, the test takes on subjective elements. These are difficult to reconcile with the objective nature of reasonableness.

c. Neither the test as formulated nor, indeed, the regulations, require a person to be acquainted with ‘the rules and regulations’. It has long since been accepted that ignorance of one’s rights is not of itself good cause for delay in claiming, but may be a factor to be taken into consideration in establishing good cause. ‘A claimant ought to take reasonable steps to ascertain his rights, but…there are frequent occasions when it is reasonable to make no enquiries because there would not appear to an ordinary person to be anything to enquire about’: R(S)3/79. It would not be difficult to multiply examples.

9 The difficulties with R(S)2/63T do not make it wrong. However, in order for it to work effectively in the wide range of circumstances placed before tribunals, the test must remain informed by the actual words used in the regulations. Judge Williams recognised the tension between the two formulations in CH/474/2002, which involved a claimant whose mental illness may have caused his unreasonable behaviour and hence his delay in claiming. Logically, someone cannot be unreasonably reasonable, but there might be a person whom we would recognise as having good cause for apparently unreasonable behaviour, which in this context extends to acts and omissions.

10 I agree with Judge Levenson in CH/2198/2008 that, at the end of the day, the test is whether the claimant has good cause. The reasonableness of what the claimant does or does not do in relation to claiming is clearly an important consideration, but must be set against other factors which may cast a different light on his behaviour. The more reasonable a person’s behaviour, having regard to age, experience and particularly (it seems to me) the information available, the more likely he is to have good cause. The less reasonable the behaviour, even bearing in mind those other factors, the less likely the claimant is to establish good cause for delay.

11 The tribunal could not consider this appeal properly without acknowledging the peculiar situation in which the appellant found herself of having to make separate claims to separate Authorities administering separate benefits which are normally claimed together on one form from one Authority. A tribunal might think that this sort of situation could confuse a broad range of claimants. But this is not the end of the matter. Once Council Tax invoices started to come through, the claimant is put on notice of a problem. Whether the behaviour in response remains reasonable needs further examination: When and how the appellant made enquiries at Haringey Council? What did she actually ask and what advice was she given? What confused her about the advice? Did she use an interpreter (either of her own or one from the council offices)? Why, as an experienced claimant, did she not go to either an advice centre or the Council office in the borough she was living in when she received Council Tax bills from a different issuing Authority?

12 As the appellant’s credibility will be a prime consideration, I consider that the most appropriate disposal of this appeal is to remit it to a fresh First-tier Tribunal (Social Entitlement Chamber) for a complete rehearing.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 25 February 2010