Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CPC/542/2010

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 4/1/10 under reference 227/09/04538 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 on 4/1/10, heard under reference 227/09/04538, with my permission, which was reluctantly given.  It seemed to me that, while the grounds the appellant put forward did not disclose any errors of law by the tribunal, there were other errors which were in the appellant’s favour.  This would mean that, since the case would inevitably have to be remitted to a First-tier Tribunal for thorough fact finding, the appellant could wind up worse off as a result. The Secretary of State made a submission agreeing that such errors as had been made were in the appellant’s favour.  

2       I am setting aside the First-tier Tribunal’s decision on the grounds given by the Secretary of State at pages 55 – 57.  I accept that the First-tier Judge did not have a great deal to work with, but I have come to the conclusion that the fact-finding and reasoning are insufficient. 

3       In these circumstances, there is no reason whatsoever for an oral hearing before the Upper Tribunal.  The appellant will have the opportunity to prove the factual matters, including the works carried out and their cost, and to explain to the tribunal why those works qualify for housing costs under paragraph 12 of Schedule II of the State Pension Credit Regulations 2002. 

4       The factual background:  The appellant, applied for State Pension Credit on 18/8/07.  It was payable from 20/8/07.  On 2/6/09 he requested help with loans on form MI12.  The Secretary of State was able to award housing costs in respect of £21,454.57, the remainder of the first loan taken out by the appellant in 1989 to acquire an interest in the house, without difficulty.  There were, however, three further loans (£11,255 (loan 2), £2,745 (loan 3) and £11,005 (loan 4) = £24,215.45) which were used for a variety of repairs, renovations, enhancements and new building.  These did cause difficulty, not least because the appellant did not appear to have retained documentation for the works.  This made quantification of costs very difficult. 

5       The appellant carried out work to the garage, including ‘underpinning’ a cracked pillar beside the garage door, fixing the up-and-over door and a leaky flat roof, putting in new drainage across the front of the house, and adding a porch.  He completely gutted the bathroom and separate toilet, put in a new bathroom suite and shower fitments, new tiling, new radiators and light fittings and an artex ceiling.  He added a utility room to the garage with some windows, a sink, cabinets, washer points, electric points, a new floor and decoration, put in a new boiler in the kitchen and removed of the old one, replaced some radiators, put in a fully fitted kitchen and new tiled floor, new oven, freezer and refrigerator and redecorated to a high standard.  The appellant explained to the Department that the property needed revamping and that the improvements and updating added value to the property.

6       The decision maker eventually allowed £2500 in respect of the purchase of a bathroom suite (£1000) and boiler (£1500).  The appellant appealed the decision because the boiler cost more than had been allowed, all of the work was on health and safety grounds, the front door of the house and garage roof and walls were dangerous, the kitchen was in a dangerous state, the gas over was dangerous and broken and that everything was done for health and safety.  The decision maker maintained the decision and the appellant appealed to the First-tier Tribunal.  The tribunal judge awarded £3000 in addition to the £2500 already awarded for repairs and improvements as defined in Schedule II, paragraph 12(2)(j)(f) and (h) respectively to the garage (unsafe structural defects), work in the kitchen (provision of facilities for preparing and cooking food) and for electrical works (provision of electric lighting and sockets). 

7       The lack of evidence:  There is a dearth of evidence on the central issue of the cost of the qualifying work carried out by the claimant.  A tribunal will generally have some rough and ready knowledge of building work upon which it can make an educated estimate about costs.  It is entitled to use this knowledge.  But the tribunal cannot pluck figures out of the air.  The lack of explanation in the Statement of Reasons about how the tribunal arrived at its global figure, and what that figure was meant to include, is such that I cannot see how the tribunal came to its conclusions.

8       There are two principles which come into play where there is a lack of evidence on an issue.  The first is that parties to tribunal proceedings have a duty to cooperate with the tribunal.  If a party has not done all that he could reasonably do to provide evidence which lies within his purview, a tribunal is entitled to determine an issue dependent upon that evidence against him:  Kerr v Department for Social Development [2004] UKHL 23, per Lady Hale of Richmond [62, 63].  The second is that if, at the end of the day, an issue cannot be resolved because of the lack of evidence, it will be decided against the party who had the burden of proving it.  In this case, the burden is on the claimant. 

9       Both principles may need to be applied in this case.  The specification and cost of the work undertaken is a matter solely within the appellant’s knowledge, but he may no longer have documents relating to the work carried out as long ago as 2002.  In respect of that work, the tribunal may consider that there has been no lack of cooperation.[1]  Nevertheless, insofar as there is still a lack of evidence which the tribunal cannot fill from its own knowledge and experience, it is entitled to decide the case by reference to the burden of proof. 

10    In relation to the work undertaken in 2008, a tribunal may find it difficult to accept that the appellant has no specifications, invoices, sales slips or receipts for money paid out.  The appellant’s duty to cooperate with the tribunal may be in question.

11    The relevant law:  The only questions in dispute are which of the works carried out by the appellant fall within paragraph 12 of Schedule II, and how much of the cost of the qualifying work can be awarded as housing costs. 

12.— Loans for repairs and improvements to the dwelling occupied as the home

(1)   A loan qualifies under this paragraph where the loan was taken out, with or without security, for the purpose of—

(a)   carrying out repairs and improvements to the dwelling occupied as the home;

(b)   (N/A)

(c)   (N/A)

(2)   and the loan was used for that purpose, or is used for that purpose within 6 months of the date of receipt or such further period as may be reasonable in the particular circumstances of the case.

(3)   (2) In sub-paragraph (1), “repairs and improvements” means any of the following measures undertaken with a view to maintaining the fitness of the dwelling for human habitation or, where the dwelling forms part of a building, any part of the building containing that dwelling—

(a)   provision of a fixed bath, shower, wash basin, sink or lavatory, and necessary associated plumbing, including the provision of hot water not connected to a central heating system;

(b)   repairs to existing heating systems;

(c)   damp proof measures;

(d)   provision of ventilation and natural lighting;

(e)   provision of drainage facilities;

(f)     provision of facilities for preparing and cooking food;

(g)   provision of insulation of the dwelling occupied as the home;

(h)   provision of electric lighting and sockets;

(i)     provision of storage facilities for fuel or refuse;

(j)     repairs of unsafe structural defects;

(k)    adapting a dwelling for the special needs of a disabled person; or

(l)     provision of separate sleeping accommodation for persons of different sexes aged 10 or over but under age [20]¹ who live with the claimant and for whom the claimant or partner is responsible.

(3) Where a loan is applied only in part for the purposes specified in sub-paragraph (1), only that portion of the loan which is applied for that purpose shall qualify under this paragraph.

12    It is to be noted that ‘repairs and improvements’ must be carried out with a view to maintaining fitness for human habitation.  That is a low standard.  It does not reflect the highest standards of living a person may wish to have.  Moreover, the work done is only a repair and improvement if it falls within one of the categories (a) to (l).  There is no discretion to award housing costs in relation to works which do not fall within the headings set out. 

13    The work on the garage:  The tribunal attributed an unspecified amount of the global sum of £3000 for repair work on the garage under heading (j).  The ‘underpinning’ of the garage may constitute a repair of an unsafe part of the structure, but the tribunal had to be satisfied that the structure was unsafe (the appellant seems to have lived with the structure since 1989 without repairing it) and find out precisely what was underpinned.  Underpinning may be done with a shovelful of cement or may be a major task, depending on its extent.  The appellant would presumably have taken advice on this.  He will have to assist the tribunal by providing evidence on this.  The tribunal must, if it is to allow anything for the repair, give some indication of how it arrived at the cost.  The tribunal did not make sufficient findings of fact on this.  In respect of the roof, the tribunal has not explained whether the leaking roof was unsafe.  A leaky roof is not necessarily unsafe, which is a precondition for allowing the cost of repair:  CIS/2132/1998.  The appellant will have to establish not only that it was unsafe, but also assist the tribunal on the cost.  It is not clear whether the tribunal considered the cracked door to be an unsafe structure and if so, how its replacement amounted to a repair.  The creation of a utility room does not fall within any of the provisions.  The tribunal did not deal with the placement of windows at far end of the garage.  It will need to explore whether, independently of the creation of the utility room, they can fall within heading (d) and was done with a view to maintaining fitness for human habitation. 

14    The work on the kitchen:  Heading (f) only extends to the provision of facilities for preparing and cooking food.  It does not extend to kitchen cupboards, which are for storage, nor a refrigerator: CIS/363/1993.  Insofar as the gas cooker was replaced, it would not count unless it was a fixture, by analogy with CIS/363/1993.  The provision of a kitchen sink may be allowed insofar as it was done with a view to maintaining fitness for human habitation rather than for coordination with the new cupboards, but a sink capable of maintaining fitness for human habitation would cost very little.  Any element of enhancement would have to be excluded. 

15    The electrical work:  The Statement of Reasons mentions electrical work in the kitchen alone.  The appellant stated in the Record of Proceedings at p36 ‘electricity ok’.  While the provision of electric lighting and sockets can be allowed under heading (h), it is only permissible if done with a view to maintaining fitness for human habitation.  The tribunal will therefore have to consider whether the lighting was to maintain fitness or as an enhancement.  There may be an element of both, in which case the tribunal will have to decide what proportion of the cost is to be allowed. 

16    Other work:  The provision of new radiators is not an allowable cost under heading (b).  The decision maker made an allowance for the replacement of the old boiler.  I note that the invoice at p26 states that the boiler was redundant.  It does not indicate that the boiler was worn out or broken.  It may be, on close examination, that the replacement of the boiler was neither a repair nor done with a view to maintaining the fitness of the dwelling.  He may simply have been upgrading the heating in the house. The decision maker has made an allowance for the new bathroom suite with which the appellant appears to be content. 

17    The tribunal may need to decide whether other work done falls within paragraph 12(2), but the discussion above should give an indication of how the items of work are to be approached.

18    Remit:  I am unable to substitute my own decision and accordingly remit the appeal to a freshly constituted First-tier Tribunal to rehear.  In accordance with standard practice, a district first-tier judge will no doubt give further directions for the rehearing.  The appellant is strongly advised, however, to produce such specifications, invoices, receipts and so on as he may have.  In addition, he may well be asked to write up a list of the work he has done in the house which can be tied up with paragraph 12(2), and to give the best estimates that he can.  It may be worth a small outlay for the appellant to find a builder who can give rough estimates of either what the works would have cost when they were done, or what they would cost now.  The tribunal may be able to work backwards from the latter.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 7 January 2011