DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Determination of Application

 

I give the claimant permission to appeal against the decision of the Rochdale First-tier Tribunal dated 26 October 2009 under file reference 947/09/00613.

 

This determination is given under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 21 and 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

Decision on Appeal

 

The DECISION of the Upper Tribunal is to allow the appeal by the claimant – but not in terms that will assist her.

 

The decision of the Rochdale First-tier Tribunal dated 26 October 2009 under file reference 947/09/00613 involves an error on a point of law and is set aside. 

 

The Upper Tribunal re-makes the FTT’s decision in the following terms:

 

“The decision under appeal to the First-tier Tribunal is the composite decision by Rochdale MBC contained in its decision letters dated 6 October 2008 with the covering letter dated 9 October 2008.  This is the only decision which was subject to a valid in-time appeal.  Although those letters were addressed to Mr and Mrs G, the composite decision is to be treated as a decision on Mrs G’s claim alone. In all other respects the substance of Rochdale MBC’s composite decision of that date was correct and is confirmed (e.g. as regards periods and rates of entitlement to council tax benefit).  Accordingly, the claimant’s appeal against that composite decision is dismissed.”

 

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

 

 

REASONS FOR DECISION

 

The parties in this application and appeal to the Upper Tribunal

 

1. The appellant in this appeal to the Upper Tribunal (and the claimant in the underlying council tax benefit claim) is a lady I shall call simply Mrs G.  She has been represented throughout by her husband, Mr G.  This appeal is simply the latest instalment in a long-running dispute between Mr and Mrs G and their local authority, Rochdale Metropolitan Borough Council (RMBC), over Mrs G’s council tax benefit (CTB) entitlement and related matters.  A previous instalment of this saga was the subject of a decision by Mr Commissioner (now Judge) Rowland in decision CH/2995/2006.

 

The Upper Tribunal’s oral hearing of this application and appeal

 

2. I held an oral hearing of this matter at Manchester Civil Justice Centre on 19 October 2011.  Mr and Mrs G both attended and made submissions about Mrs G’s case. Mrs J Lumb from RMBC’s Revenues & Benefits Service attended as representative for the local authority.  I am grateful to them all for their submissions on what was a long day; I appreciate that this must have been trying for Mr and Mrs G, neither of whom is in the best of health. 

 

3. In reaching this decision I have taken into account everything I have read on the voluminous file (more than 900 pages), including the further submissions received after the hearing, as well as the parties’ oral submissions.  It has not been possible to deal with every single point raised.  However, I have sought to deal with all the material points that have emerged in this complex case.  I apologise in advance for the length of this decision, which can be summarised as follows.

 

A summary of the Upper Tribunal’s decision

 

4. Even though her appeal to the First-tier Tribunal succeeded, I give Mrs G permission to appeal against the decision of the Rochdale First-tier Tribunal (FTT) dated 26 October 2009 (under file reference 947/09/00613).  Her grounds of appeal are plainly arguable.  In fairness, Mrs Lumb indicated that RMBC itself was also not entirely happy with the approach taken by the FTT on 26 October 2009.

 

5. I decided to deal with the application and appeal together, on a “rolled up basis”, with the parties’ consent.  I also allow Mrs G’s appeal against the FTT’s decision dated 26 October 2009.  This is because the FTT’s decision involved an error of law.  In short, it failed to identify properly which decision by RMBC was under appeal.  I therefore set aside the FTT’s decision.

 

6. I am re-making the FTT’s decision, rather than remitting the case for yet another hearing before the FTT.  The decision that the FTT should have made is as set out above at the head of these Reasons and repeated below at [76].

 

7. A useful, and indeed essential, starting point for understanding the background to the present case is Mr Commissioner Rowland’s decision in CH/2995/2006, dated 21 September 2007.  It is especially important to be clear about what was decided in that case, as at times Mr G sought to suggest that Mr Commissioner Rowland’s findings went further than I think can be justified.

 

The decision of Mr Commissioner Rowland in CH/2995/2006

 

8. In CH/2995/2006 Mrs G had first been awarded council tax benefit (CTB) with effect from 12 July 2004.  Later that year RMBC sought to “review” that claim.  A series of difficult exchanges then followed between Mr and Mrs G on the one hand and RMBC on the other. In due course RMBC purported to suspend and then to stop Mrs G’s CTB.  In doing so, the local authority relied on three decisions it had taken on 2 February 2005, 7 April 2005 and 25 June 2005. Mrs G appealed.

 

9. On 19 June 2006 an appeal tribunal (as the First-tier Tribunal was then called) heard Mrs G’s appeal.  The tribunal disallowed the appeal and confirmed RMBC’s last decision (dated 25 June 2005).  However, the tribunal’s subsequent statement of reasons also expressed concern that “the processing of the claim was not well-handled by the local authority”.  In particular, the tribunal expressed the view that the earlier decision of 2 February 2005 “was made wrongly”.  Mrs G appealed to the Social Security Commissioner.

 

10. A preliminary issue in CH/2995/2006 was the question of who the claimant actually was in that case.  As the Commissioner explained, by law only one member of a couple can be the claimant for council tax benefit purposes, although they are jointly and severally liable for council tax itself.  In the circumstances of that appeal, Mr Commissioner Rowland expressly ruled that “the couple liable for council tax plainly decided that the wife should be the claimant and the local authority had no power to award the benefit to her husband” (at paragraph 3). 

 

11. This was, however, a sideshow.  As the learned Commissioner noted, the principal question on appeal in CH/2995/2006 was “a point of some practical importance to local authorities”, namely “the proper way of terminating awards of council tax benefit when a claimant has not co-operated with requests for evidence” (at paragraph 2).  The statutory provisions in question were (and still are) to be found in Part III (regulations 11-16) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002; “the 2001 Regulations”). The Commissioner set out the relevant legislation (at paragraphs 13-19 of his decision) and analysed it in detail (at paragraphs 20-31).  Nothing I say should be read as doubting that careful analysis in any way.  I also note that the expert commentary in the field now treats CH/2995/2006 as the leading case on the construction of the statutory provisions in question (see CPAG’s Housing Benefit and Council Tax Benefit Legislation, 23^rd edn, 2010/11 by L Findlay et al, pp.1030-1036).

 

12. Mr Commissioner Rowland concluded in CH/2995/2006 that the local authority’s decision-making processes in 2005 had not been in accordance with the statutory requirements for suspending and then terminating payment of, and entitlement to, CTB.  Like the appeal tribunal, he was also critical, in no uncertain terms, of the council’s approach (e.g. “Quite how a local authority comes to write a letter like that dated 2 February 2005 I do not know” (at paragraph 33)).  Mr Commissioner Rowland’s substantive decision on the appeal in CH/2995/2006 was in the following terms (at paragraph 1):

 

“I allow the claimant’s appeal.  I set aside the decision of the Rochdale appeal tribunal dated 19 June 2006 and I substitute my own decision.  The award of council tax benefit, made in the claimant’s husband’s name from 12 July 2004, is to be treated as having been made to his wife and is not to be superseded on the ground that she has failed to provide information to the local authority.  However, before arrears of benefit are paid or credited to the claimant’s council tax account, the local authority is entitled to take steps to verify her entitlement.”

 

13. The consequence, the Commissioner noted, was that as a starting point “arrears of benefit from 12 July 2004 are due to the claimant” (paragraph 46).  Mr G relied on this statement as a vindication of the position that he and his wife had maintained throughout.  However, in doing so Mr G failed to recognise the significance of the important rider that Mr Commissioner Rowland had added to his conclusion (at paragraph 46):

 

“46. However, I wish to make it clear that this does not preclude the local authority from now revising or superseding the award of benefit on grounds other than regulation 14 of the 2001 Regulations, if it has the evidence upon which to do so.  It is even open to the local authority to suspend the payment of the arrears due under my decision while it investigates the case further, although it will ultimately be obliged to pay those arrears if it cannot revise or supersede the award on grounds other than regulation 14.  Local authorities have ample powers adequately to police claims and regulation 14 is an important part of their arsenal.  They are entitled to expect co-operation from claimants in receipt of public funds. Nonetheless, they cannot rely on regulation 14 without following the correct procedures and they cannot rely on regulation 14 to terminate entitlement in respect of any period before payment has been suspended.  It is to be hoped that the Secretary of State will make new regulations to clarify the scope of local authorities’ powers to ask for information and to suspend payment for a failure to provide it.”

 

14. I observe in passing that no action appears to have been taken by ministers in response to the Commissioner’s suggestion in the final sentence of that passage.

 

The local authority’s response to the Commissioner’s decision in CH/2995/2006

 

15. Mr Commissioner Rowland’s decision was dated 21 September 2007.  The local authority’s response, very sensibly, was to undertake a review of the case as a whole.  In November and December 2007 RMBC sent Mrs G a series of letters, which can for convenience be grouped into two categories. 

 

16. First, RMBC issued letters dated 6 and 12 November 2007, stating that it had decided to revise its benefits decision in her favour.  These letters made it clear that the effect was to reinstate CTB for the period from 12 July 2004 (the date of claim) until 31 March 2005 (the end of the financial year), with the result that £645.65 was credited to her council tax account.  The authority also removed the summons costs for that year.  In consequence there was no outstanding balance on the council tax account for the 2004/05 financial year (see also RMBC letter dated 3 December 2007). This also meant, as the letter of 12 November 2007 explained, that any outstanding appeal in respect to CTB entitlement for 2004/05 now lapsed (see Child Support, Pensions and Social Security Act 2000, Schedule 7, paragraph 3(6) and regulation 176 of the 2001 Regulations).

 

17. Second, a further notification letter, dated 8 November 2007, along with entitlement letters dated 6 November 2007, none of which appears to be included in the tribunal bundle, referred to Mrs G’s CTB entitlement with effect from 1 April 2005.  These letters in effect dealt with CTB entitlement for the 2005/06 and 2006/07 financial years.  Mrs G undoubtedly sent RMBC a letter requesting clarification (dated 28 November 2007) but the file seems to contain no contemporaneous letter of appeal.  I return to this point later.

 

The local authority’s further decision letters

 

18. In the period since November 2007 RMBC has sent Mrs G (or Mr G, or Mr and Mrs G) a series of further decision letters at various stages in response to the couple’s extensive correspondence.  For present purposes I need only focus on two of those decision letters (or rather, to be precise, two sets of such letters issued on two separate dates).  The first comprise the decision letters dated 7 March 2008.  The background to these was that on 7 January 2008 RMBC notified a decision that it was suspending payment of CTB from that date.  This was because the DWP had informed RMBC that Mrs G’s income support claim ended on 11 December 2007.  RMBC followed that up with a decision dated 14 February 2008 terminating the CTB award due to the claimant’s failure to return the required form.  Mrs G lodged an appeal against that decision on 25 February 2008.  RMBC checked and established that Mrs G’s income support had been reinstated with effect from 11 December 2007.

 

The decision letters of 7 March 2008

19. On 7 March 2008 RMBC then sent Mr and Mrs G a series of four separate but lengthy computer-generated letters, each with detailed calculations relating to CTB.  The first letter (7 pages long) started with the statement that “Your claim has been assessed and your earlier council tax benefit has been revised/ superseded because your DWP [Department for Work and pensions] benefit, allowances or pension credit has changed”.  That mantra was repeated in each of the following three letters of the same date. 

 

20. The first such letter set out CTB entitlement for the period from 4 April 2005 to 14 August 2005 and stated that there was a recoverable overpayment of £672.62 for the period from 8 August 2005 until 25 June 2006.

 

21. The second letter dated 7 March 2008 (13 pages long) set out CTB entitlement for the period from 15 August 2005 to 25 June 2006 and stated (somewhat confusingly) that there were smaller recoverable overpayments for the earlier period from 18 April 2005 until 7 August 2005.

 

22. The third letter dated 7 March 2008 (18 pages long) set out CTB entitlement for the period from 26 June 2006 until 5 November 2006 but made no mention of any recoverable overpayment for that period.

 

23. The fourth letter dated 7 March 2008 (15 pages long) set out Mrs G’s CTB entitlement for the period from 6 November 2006 through to 31 March 2009 but again made no mention of any recoverable overpayment for that period.  These letters also explained clear that full CTB had been reinstated for the period from December 2007 as Mrs G was receiving income support.

 

The decision letters of 6 October 2008

24. On 6 October 2008, in response to further correspondence, RMBC sent Mr and Mrs G a further series of three separate letters, again each with detailed workings. Each letter started with the same mantra: “Your council tax benefit has been revised/ superseded because of a change in circumstances”. 

 

25. The first such letter (6 pages long) covered CTB entitlement for the period from 8 August 2005 to 31 March 2006 but also concluded that there was a recoverable overpayment of £104.13 for the period from 13 February 2006 to 22 April 2007.

 

26. The second letter dated 6 October 2008 (17 pages long) set out CTB entitlement for the period from 1 April 2006 until 1 October 2006 but made no mention of any recoverable overpayment for that period.

 

27. The third letter dated 6 October 2008 (16 pages long) set out CTB entitlement for the period from 2 October 2006 until 31 March 2009 but again made no mention of any recoverable overpayment for that period.

 

28. The three letters dated 6 October 2008 were sent with a covering letter to Mr and Mrs G dated 9 October 2008, in which RMBC explained that Her Majesty’s Revenue & Customs (HMRC) had provided new information about Mrs G’s tax credit entitlements for the period from 18 April 2005 to 29 April 2007, and that these figures formed the basis of the new CTB assessments.  In this decision I refer to the benefit entitlement letters of 6 October and the covering letter of 9 October together as the “composite decision of 6 October”. Furthermore, there were two important differences between the decisions of 7 March and 6 October 2008. First, the claimed overpayment for part of the period between April 2005 and April 2007 had reduced from well over £600 to £104.13.  Second, the authority now made it clear that, in any event, it had no intention of seeking recovery of that overpayment (letter dated 9 October 2008).

 

Mrs G’s letters of appeal

 

29. Just as RMBC sent many letters to Mr and Mrs G in the period after Mr Commissioner Rowland’s decision in CH/2995/2006, so too Mrs G (and/or her husband) wrote many letters to RMBC taking issue with the council’s actions and decisions.  Some of these were expressed in terms of a request to “look again at my claim”, while others used the specific word “appeal”.  Some letters used both terms.  I can find no trace on the voluminous file of any letter challenging the decisions of 8 November 2007 or 7 March 2008 which would count as an in-time appeal.  However, there is absolutely no doubt that Mrs G wrote to RMBC on 5 November 2008 purporting to appeal a wide range of decisions, including the composite decision dated 6 October 2008.

 

30. It is also plain, however, that RMBC was having some difficulty in getting to grips with Mrs G’s correspondence.  Over this period RMBC wrote a series of letters to Mrs G (and/or Mr G) asking for clarification as to precisely which decisions she was appealing against and why (see letters dated 7 August 2008, 12 September 2008, 23 October 2008 and 26 November 2008).  In her letter of 23 October 2008, the RMBC senior appeals officer explained to Mrs G as follows:

 

“If I send the appeal in its current format, the Tribunals Service may not accept the appeal because they would not be able to determine the date of the decision made by the Authority against which you want to appeal.”

 

The referral of the appeal by RMBC to the Tribunals Service

 

31. On 13 March 2009, having apparently made no real progress, the RMBC senior appeals officer referred Mrs G’s appeal dated 5 November 2008 to the Tribunals Service with a covering letter.  It is symptomatic of the disorder of the FTT bundle that RMBC’s letter dated 13 March 2009 only came to light on the administrative backing file shortly before the hearing of the application before the Upper Tribunal.  In that letter the RMBC senior appeals officer argued that:

 

·        The appeals in respect of some of the decisions were misconceived because there was no reasonable prospect of success at the tribunal;

·        Some of the decisions appealed against had already been the subject of decision by the tribunal or Upper Tribunal (previously the Commissioner);

·        Any appeal against a decision prior to the decision of 9 October 2008 [necessarily incorporating the decision letters dated 6 October 2008] was out of time and should not be dealt with;

·        Some of the decisions appealed against related to council tax liability and as such were outside the jurisdiction of the FTT;

·        The only decision which had been properly appealed was the composite decision of 6 October 2008, which had been prompted by new tax credit information, and so that was “the only decision that should be accepted for appeal”.

 

RMBC accordingly requested the FTT to make a direction or decision as appropriate.

 

The interlocutory proceedings before the First-tier Tribunal

 

32. The FTT had considerable difficulty in effectively case managing the appeal.  At the outset, it should be noted that Mrs G had two appeals registered with the FTT at this stage.  The first was this CTB appeal.  The second was a related appeal against a DWP decision to impose a deduction from Mrs G’s income support entitlement in respect of council tax benefit arrears.

 

33. District Tribunal Judge (DTJ) Ball, who had heard the original 2006 appeal, issued initial case management directions for the CTB appeal on 31 March 2009, requiring RMBC to produce a fresh submission detailing the decision-making history since Mr Commissioner Rowland’s decision in CH/2995/2006. The authority duly produced a response.  The case was then listed for a preliminary hearing before DTJ Pinder on 6 July 2009.  The local authority’s representatives attended that hearing but (for reasons which will become apparent) Mr and Mrs G did not.  Following the preliminary hearing, DTJ Pinder issued further directions requiring RMBC to provide yet another submission, clarifying the basis for certain specified decisions (including those of 7 March and 6 October 2008).  DTJ Pinder also required the appellant to explain the grounds on which she wished to challenge such decisions.

 

34. Mrs G had previously written to the FTT on 18 June 2009 asking for the preliminary hearing scheduled for 6 July 2009 to be postponed until RMBC had fully complied with DTJ Ball’s earlier directions.  On 2 July 2009 Mrs G wrote again to the FTT, following up her husband’s telephone call of the same date, again asking for the 6 July 2009 hearing to be postponed, but this time because she said that she and her husband had to attend a funeral on that day.  It is by no means clear that this letter was before DTJ Pinder on 6 July 2009.  The letter does not seem to be in the main tribunal bundle but I unearthed a copy on the tribunal’s backing administrative file.  Certainly DTJ Pinder’s note of the proceedings gives no inkling at all that he was aware of this request.  The record of proceedings simply notes “At 10.15 the clerk informed the Tribunal in Liverpool that he [Mr G] asked to speak to the Tribunal. He was told that he could not do so over the telephone and he ended the call”.  Furthermore the file includes a fax sent from the Tribunals Service regional office to the Rochdale venue with the message “Letters from Mrs G to be heard today at 10 am”.  The fax included Mrs G’s letter of 18 June 2009 with attachments but not her subsequent letter of 2 July 2009.  I am therefore entirely satisfied that DTJ Pinder was quite simply unaware of the second postponement request (dated 2 July 2009), presumably due to an administrative oversight at the regional office.  On that basis, there was an inadvertent breach of natural justice, as the FTT should not have gone ahead with its hearing on 6 July 2009 without considering the second and funeral-related postponement request.  However, in my assessment nothing turns on this, as DTJ Pinder did not make any decision detrimental to Mrs G on that date. His tribunal simply issued perfectly reasonable further case management directions. 

 

35. RMBC then provided a further submission in response to DTJ Pinder’s new directions.  It is right to say that further submission could have been clearer and more helpful.  On 28 July 2009 Mrs G wrote to the FTT complaining about DTJ Pinder’s directions of 6 July 2009, asking for an extension of time and challenging the decision to list both her CTB and income support appeals together.  She then wrote again on 3 August 2009, asking for DTJ Pinder’s directions to be reconsidered and set aside. Mrs G then wrote yet again on 6 August 2009, a letter with 54 pages of attachments, complaining that she was only “in a position to forward onto you some of the grounds/information/documents at present”.  She followed that up with further letters on 7 and 10 August 2009 and a formal complaint to the regional office on 12 August 2009.  I have to say that by this stage I am not surprised that the FTT office was apparently unable to cope with this positive avalanche of correspondence.

 

36. On 15 September 2009 Mrs G wrote to the FTT again, principally challenging the decision to list the CTB and the income support appeals for hearing together on 26 October 2009.  On 24 September 2009 Regional Tribunal Judge (RTJ) Warren refused that application.  On 19 October 2009 RTJ Warren gave his reasons for that refusal, observing in passing (and accurately) that “these files are nearly a year old and very slow progress has been made in resolving or even identifying the grievances of the appellant.”  On the same date, and presumably crossing in the post, Mrs G applied for the hearings on 26 October 2009 to be adjourned until after a separate appeal against a tax credits decision by HMRC had been heard (I return to that issue later).  DTJ Dwyer refused that request on 22 October 2009.  This set the scene, at last, for the hearing of the CTB appeal to take place (along with the income support appeal).

 

The First-tier Tribunal’s hearing and decision on 26 October 2009

 

37. Both the appellant’s appeals were listed before DTJ Dwyer on 26 October 2009.  Mrs Lumb attended the CTB appeal as presenting officer for RMBC.  Mr and Mrs G told me that the hearing was very short; Mrs Lumb did not disagree.  This is confirmed by the judge’s record of proceedings, which reads, in its entirety, as follows:

 

“[Appellants apparently argumentative with clerk, challenging the jurisdiction of the tribunal].

 

I explained to the PO that the revised decision notices were in my view defective.

 

PO: we have raised your concerns with our office but it has not been possible to effect any change to the Notice.”

 

38. DTJ Dwyer’s Decision Notice in the CTB appeal was equally succinct:

 

“The appeal is allowed.

 

The decision of the respondent issued on 07/03/2008 is set aside.

 

1.     This appeal was remitted for rehearing by an Upper Tier Tribunal Judge on 21/09/2007. This is because the original decision of the Local Authority was defective.

2.     The revised decision now under appeal is apparently to be found at page 644 of the submission onwards [this was a reference to RMBC’s decision dated 7 March 2008].

3.     The above decision is also defective because it does not say whether it is a supersession or a revision of an earlier decision.  Furthermore it does not say specifically why an earlier decision has been revised or superseded.

4.     I have allowed this appeal for the above reason without any evaluation of the merits of the case.”

 

39. Having allowed Mrs G’s appeal in the CTB case, DTJ Dwyer went on to allow her companion appeal in the income support case in equally short order.  On 2 November 2009 Mrs G wrote to the FTT asking for a statement of reasons for both decisions.  The FTT clerk subsequently advised her that DTJ Dwyer “has directed that he has nothing to add to the decision [notice] which contains his reasons for the same”.  On 4 January 2010 Mrs G stated her intention to appeal to the Upper Tribunal and on 28 January 2010 she repeated her request for a fuller explanation.  DTJ Dwyer refused permission to appeal on 22 February 2010.  The FTT sent Mrs G a copy of that refusal notice on 24 February 2010, advising her of her right to apply direct to the Upper Tribunal for permission.

 

Mrs G’s applications for permission to appeal against the FTT’s decisions

 

40. On 23 March 2010 Mrs G lodged with the Upper Tribunal her applications for permission to appeal in respect of both of the FTT’s decisions.  She set out 33 grounds of appeal.  Unfortunately the application was then beset with administrative delays, caused in part by an apparent failure by the FTT regional office to process the first stage consideration of the parallel application for permission to appeal in the income support case.

 

41. Nearly a year later, on 5 April 2011, both applications were referred to me for determination.  On 6 April 2011 I decided (i) to refuse the application for permission to appeal against the FTT’s income support decision (under Upper Tribunal reference CIS 2781 2010); and (ii) to issue directions on the application for permission to appeal against the FTT’s CTB decision.  Following further detailed submissions from both Mrs G and RMBC, and after a postponement, the application was listed for an oral hearing in Manchester on 19 October 2011.  In case management directions I indicated that I was minded to deal with the application on a “rolled up basis”, i.e. if permission was granted to deal with the resulting appeal as well.  The parties agreed to that approach, but in any event I provided them with the opportunity to make any further submissions in writing on the appeal, which both parties have done.  The oral hearing in Manchester took the best part of a day, starting at 10.45 a.m. and finishing at about 3 p.m. with a  break for lunch.

 

The Upper Tribunal’s determination of the application for permission to appeal

 

42. It is neither necessary nor realistic to deal with each of Mrs G’s 33 itemised grounds of appeal against the decision of DTJ Dwyer.  They can be summarised in broad terms as follows. Even though her appeal had succeeded, Mrs G objected to the FTT’s decision because, she argued, it failed to consider her CTB appeal fully, failed to address all the RMBC decisions she had appealed against and failed to give adequate reasons. Although the authority itself had not lodged an application for permission to appeal, Mrs Lumb made it clear that the council also had its own reservations about the FTT’s decision.  So far as RMBC was concerned, the only decision it had made which was under appeal at the FTT hearing on 26 October 2009 was the composite decision dated 6 October 2008. That approach, of course, was entirely consistent with the authority’s position on the original referral of Mrs G’s appeal to the Tribunals Service on 13 March 2009.

 

43. The fact that both parties disagree with the FTT’s decision does not, of itself, necessarily mean that the tribunal’s decision involves an error of law.  Furthermore, the normal rule is that a successful party cannot appeal a tribunal’s decision.  However, in exceptional circumstances it may be appropriate to allow a successful party to challenge one aspect of the FTT’s reasoning, and I find this to be such a case.  In this case, it is plainly arguable that the FTT’s decision may be wrong in law.  At the very least, it is unclear whether the tribunal correctly identified the scope of the appeal before it.  I accordingly give Mrs G permission to appeal.  I can proceed to resolve the appeal itself.

 

The reason why the FTT’s decision involves an error of law

 

44. DTJ Dwyer’s decision notice starts with the assumption that it was a re-hearing following a remittal by the Social Security Commissioner/Upper Tribunal.  In fact, Mr Commissioner Rowland had substituted his own decision for that of the previous appeal tribunal (see [12] above).  It followed that the appeal on 26 October 2009 was not a re-hearing or remittal of Mrs G’s appeals against RMBC’s earlier decisions of 2 February 2005, 7 April 2005 and 25 June 2005 – those decisions had been consigned to the dustbin of history by Mr Commissioner Rowland.  The appeal on 26 October 2009, therefore, could only be an appeal against RMBC’s subsequent decision (or decisions), i.e. as taken after the Commissioner’s decision in CH/2995/2006 (and as subject to time-limits). 

 

45. It may be that paragraph 1 of the FTT’s decision notice is simply expressed in a hurried fashion, as in paragraph 2 DTJ Dwyer certainly recognised that there was a subsequent “revised decision now under appeal”.  Be that as it may, I am satisfied that the FTT’s decision involves an error of law in paragraph 2. Mrs G had been arguing throughout in her correspondence that she had a series of extant appeals against a whole range of different decisions by RMBC about her CTB entitlement.  RMBC, on the other hand, had consistently argued that the only valid appeal was her appeal against the decision of 6 October 2008.  Unfortunately the FTT did not resolve that difference of views.  Rather, it simply asserted that the “revised decision now under appeal is apparently [that of 7 March 2008]”, a conclusion which accorded with neither party’s submissions, and without giving any reasons.

 

46. This is an error of law which means I must allow the appeal by Mrs G to the Upper Tribunal.  In those circumstances I do not need to deal with her other 32 grounds of appeal.

 

The three options now open to the Upper Tribunal

 

47. Where an appeal to the Upper Tribunal is allowed, there are three options open to it so far as disposal is concerned (see Tribunals, Courts and Enforcement Act 2007, section 12(2)). 

 

48. First, the Upper Tribunal can, in the exercise of its discretion, leave the FTT’s decision unchanged.  That option might be appropriate if I was confident that the error of law by the FTT had no material effect on the outcome of the original appeal.  That is certainly not the case here.  So the FTT’s decision dated 26 October 2009 must be set aside.

 

49. Second, the Upper Tribunal can set aside the FTT’s decision and send the case back with directions for re-hearing by the same or a different tribunal.  This, in practice, is the usual course of action in successful appeals, but I am satisfied that this is not appropriate here.  This case has a long and difficult history.  I am also conscious that RMBC has made a further decision following on, and in the light of, the FTT’s decision dated 26 October 2009, which is itself the subject of a further and currently stayed appeal to the FTT (see further [94]–[98] below).  In those circumstances it is incumbent on the Upper Tribunal to provide some degree of guidance to the FTT that is charged with the task of hearing that subsequent appeal, even if finality in these proceedings cannot be attained.

 

50. This leaves the third option, which is that the Upper Tribunal can set aside the FTT’s decision and substitute its own decision, or “re-make” the decision in the language of the legislation (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)).  That is the route I propose to adopt in this case.

 

 

 

The Upper Tribunal’s analysis: the RMBC decision(s) under appeal

 

51. In order to re-make the tribunal’s decision, the starting point must be to identify which decision (or decisions) taken by RMBC was (or were) the subject of a valid appeal by Mrs G to the FTT on 26 October 2009.

 

The claimant’s case

52. Mrs G’s case, pared down to its essential core submission, was simple.  As Mr G wrote in his submission dated 20 June 2011, and reiterated at the oral hearing:

 

“I/we believe that the decision/s before the FTT on the 26 October 2009 were all of the Local Authority’s decision/s made since 2004 in relation to CTB, overpayment/s of CTB/Excess Benefit/CT and CT arrears.”

 

53. That is, on any reckoning, a startlingly wide proposition.  It is also wholly misconceived, for at least three reasons.

 

54. First, the FTT (and on appeal the Upper Tribunal) simply has no jurisdiction to hear appeals against a local authority’s decisions relating to liability for council tax (CT) and council tax arrears.  In general terms the Valuation Tribunal hears appeals relating to council tax liability and “banding” issues, whilst magistrates’ courts deal with enforcement and arrears of council tax.

 

55. Second, and as explained above, the effect of Mr Commissioner Rowland’s decision in CH/2995/2006 was that RMBC’s decisions of 2 February 2005, 7 April 2005 and 25 June 2005 had been consigned to the dustbin of history.  They were, after 21 September 2007 (the date of the Commissioner’s decision) simply of no effect.  As at that date, Mrs G had the benefit of a decision by RMBC, dated 27 September 2004, and awarding her full CTB, unaffected by that trio of defective decisions.  Mrs G may still wish to fight the battles relating to those decisions from the first six months of 2005 but she won those battles long ago.  The FTT and the Upper Tribunal are not in the business of re-deciding disputes which have already been determined.

 

56. Third, there are time limits to consider.  The right to appeal against a local authority’s decision in relation to a claimant’s CTB entitlement is not unlimited.  The basic rule is that an appeal must be lodged within one month of the date of the decision in question being sent to the claimant.  A late appeal will be treated as having been made in time if the local authority’s decision maker does not object, subject to an absolute time limit of a further 12 months (see now Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2865), rule 23(2), (4) (5) and Schedule 1, in effect re-enacting broadly equivalent provisions in the 2001 Regulations).

 

57. I therefore have no hesitation in rejecting Mrs G’s argument that, in effect, every RMBC decision going back to the original CTB award in 2004 was necessarily before the FTT on 26 October 2009.

 

The local authority’s case

58. RMBC’s position has been consistent throughout.  It has argued that the only valid in-time appeal was Mrs G’s letter of 5 November 2008, and that this concerned the authority’s composite decision of 6 October 2008.  Any other appeals, it argued, either concerned decisions which had already been subject to the appeals process, or were out of time or out of jurisdiction, or were against decisions which had been fully revised in the claimant’s favour in any event.

The Upper Tribunal’s conclusion on the scope of the claimant’s appeal

59. The state of the tribunal bundle, allied with the volume and nature of the correspondence from the claimant and her husband over the years, combined with the less than helpful terminology of some of the local authority’s decision letters, makes it extremely difficult to discern precisely which RMBC decisions have been subject to an in-time appeal in this case. 

 

60. It will be recalled that the FTT itself took the view that the decision which was under appeal and before it on 26 October 2009 was RMBC’s decision dated 7 March 2008.  However, I have already mentioned that I can find no trace on the file of any letter specifically challenging the decision of 7 March 2008 that would count as an in-time appeal (see [29] above).  There is a letter from Mrs G dated 8 April 2008, asking for a further copy of that decision, but not making an appeal as such.  Moreover, Mr G’s subsequent letter of 23 May 2008 is a purported appeal against RMBC’s decisions generally between 2004 and 2007 and makes no mention of the 7 March 2008 decision.  There is a further purported letter of appeal dated 5 September 2008, but that was in response to RMBC’s letter of 15 August 2008, which was actually a statement of the couple’s council tax account, rather than a notification of a CTB decision giving rise to rights of appeal to the FTT.

 

61. I have explained above why I do not accept the claimant’s sweeping arguments about the decision(s) under appeal and before the FTT.  I am satisfied, having studied the tribunal bundle, that RMBC’s core contention is correct, in that the only decision under appeal was the authority’s composite decision dated 6 October 2008.  My only minor qualification to that submission is that the decision was first appealed in a letter from Mr and Mrs G dated 14 October 2008, which was then in effect repeated in the further letter dated 5 November 2008.  Nothing turns on that, however; either way that appeal was in time.

 

62. At this juncture I should mention that in the course of the oral hearing at Manchester Mr G made an application for disclosure by RMBC “of anything and everything that the authority holds on file in relation to anything and everything about us, not just relating to council tax benefit”.  Mr G made it clear that this application extended to both paper files and computer records.  He asserted that he and Mrs G had been the subject of covert surveillance by RMBC officers.  Mrs Lumb resisted that application, pointing out that the tribunal bundle was already over 900 pages long and included everything, so she believed, that was material to the CTB appeal. 

 

63. I dismissed that application at the hearing on the basis that there appeared to be sufficient material already on file and that the application was far too widely drawn to be regarded as proportionate in the context of the present proceedings.  I pointed out that issues of covert surveillance were subject to the Regulation of Investigatory Powers Act 2000 (“RIPA”), which fell within the jurisdiction of the Investigatory Powers Tribunal. I have also satisfied myself that RMBC is not seeking to rely on any evidence in this appeal which might have been gathered in circumstances where RIPA could conceivably have applied.  I also noted that there were other avenues available to Mr and Mrs G under the Data Protection Act 1998 and Freedom of information Act 2000 as regards any requests for the disclosure of information.

 

64. At a later stage in the oral hearing, after I had refused Mr G’s application, Mrs G produced a copy of a CTB claim form dated 14 May 2007.  The tribunal bundle did not include a copy of that claim form.  Mrs G described how that claim form had been submitted to the council and stated that she had not received any response to it.  Mrs Lumb was understandably taken somewhat by surprise and was unable to comment at the hearing on what, if anything, had happened to that claim.  She has, however, made a final submission in writing dealing with the issue.

 

65. In the light of that development, I have reconsidered (but again rejected) Mr G’s application for a direction for disclosure, which he has also repeated in his final written submission.  I re-cast it in rather more realistic terms, e.g. an application for disclosure of all documents held on computer and paper form about Mr or Mrs G’s entitlement to CTB.  I accept that there are, undoubtedly, some gaps in the tribunal bundle.  Two examples will suffice.  First, there is the claim form dated 14 May 2007 produced by Mrs G at the hearing.  Second, as noted above (at [17]), there is no copy of the 8 November 2007 decision letter from RMBC on the tribunal file. 

 

66. Do these omissions matter?  In my view they do not.  As to the claim form of 14 May 2007, Mrs Lumb’s post-hearing written submission explains that this was the subject of a decision by RMBC dated 18 June 2007, and there is certainly a copy of that decision letter on the tribunal file.  As to the 8 November 2007 decision letter, this is referred to in the letter of 12 November 2007 on file and its import is also summarised in RMBC’s earlier submissions to the FTT.  Indeed, Mr and Mrs G were not able to identify any particular documents which they claimed to be essential to the resolution of the present proceedings but which were not included in the bundle.

 

67. I am therefore as confident as I can be that the very full tribunal bundle includes sufficient material to dispose of this appeal in a fair and just manner.  Taking into account what is available, I am not satisfied that any gaps are material.  For example, the effect of RMBC’s earlier decision in November 2007 was that Mrs G’s CTB entitlement had been reinstated for the 2004/05 financial year and the council tax account for that year was clear.  That left the question of Mrs G’s CTB entitlement with effect from April 2005.  As noted above the further (but missing) notification letter dated 8 November 2007 referred to Mrs G’s CTB entitlement with effect from 1 April 2005.  As already mentioned, I am not satisfied on the evidence before me that there was a valid in-time appeal against the 8 November 2007 decision.  Even if there was such an appeal lodged, does it matter?

 

68. In my view it does not. The missing 8 November 2007 decision was concerned with Mrs G’s CTB entitlement with effect from 1 April 2005 until some date in the 2006/07 financial year.  However, the decision letters of 7 March 2008 covered the entire period from 4 April 2005 until 31 March 2009.  Those decision letters were also not appealed in time (see [29] above).  The appeal that was actually before the FTT was the appeal by Mrs G against RMBC’s later composite decision of 6 October 2008.  That decision covered Mrs G’s CTB entitlement for the entire period from 8 August 2005 through to 31 March 2009.  It followed that the only period covered by the earlier decisions, but not by the 6 October 2008 decision letters, was the period from April to August 2005.  However, Mrs G’s tax credit award remained unchanged during that period.  It was only from August 2005 that Mrs G’s rate of tax credits changed, and that issue fell firmly within the scope of the appeal against the composite 6 October 2008 decision.

 

The Upper Tribunal’s analysis: the composite decision dated 6 October 2008

 

69. As already noted, RMBC’s composite decision dated 6 October 2008 actually comprised three separate letters, each with detailed workings (see [24]-[28] above).  Taken together, they covered Mrs G’s CTB entitlement for the entire period from 8 August 2005 right through to 31 March 2009. In doing so, the first letter had also concluded that there was a recoverable overpayment of £104.13 for the period from 13 February 2006 to 22 April 2007, although the authority made it clear it did not seek recovery of this sum.  The decision letters were accompanied by RMBC’s covering letter dated 9 October 2008, which explained that the re-assessments had been based on the weekly amounts of tax credits for (broadly) the 2005/06 and 2006/07 tax years, as confirmed by HMRC (on 18 September 2008). 

 

70. To be precise, these tax credits weekly rates covered the period from 18 April 2005 until 29 April 2007, although it is clear from the file that the tax credit weekly awards for the early part of the 2005/06 tax year were actually the same as those previously relied on by RMBC (and as had been notified by HMRC earlier on 26 October 2007).  They only changed with effect from August 2005. I have carried out some spot checks and am satisfied that the final tax credit figures, as confirmed by HMRC on 18 September 2008, have been carried over properly into the CTB calculations in the authority’s composite decision dated 6 October 2008.

 

71. Even so, I accept that the decision letters dated 6 October 2008 are not that easy to follow.  They follow the same format as the earlier letters of 7 March 2008, criticised by DTJ Dwyer.  The use of the standard formula “Your council tax benefit has been revised/ superseded because of a change in circumstances” is unhelpful.  Mrs Lumb explained that the computer programme then in use had a default setting for such letters which could not be manually altered, but that a new system was now in place.  Be that as it may, I am satisfied that the decision letters of 6 October 2008 were plainly intended to provide a comprehensive account of Mrs G’s CTB entitlement for the whole of the period that they covered.  In doing so, they necessarily revised or superseded as appropriate any of the authority’s (many) previous decisions relating to any part of that same period.  That much is clear from the covering letter and the decision letters themselves.  On that basis, I do not find that they are defective.  I am also satisfied that, with the RMBC covering letter taken into account, they adequately explain why those various decisions were taken, namely because of the change of circumstances represented by the notification of the finalised tax credits entitlements.  It is true, of course, that the decision letters of 6 October 2008 were addressed jointly, but incorrectly, to Mr and Mrs G, when they should have been addressed to Mrs G alone (for reasons that will become apparent).  However, the solution to that is simply to read them as letters addressed to Mrs G alone as the sole claimant (see further CH/2995/2006).  The authority’s error in addressing the letters does not affect the substance of the award in terms of either the periods or the rates of the underlying awards of CTB.

 

72. Indeed, with one exception, Mr and Mrs G did not actually seek to mount any particular arithmetical challenges to the decision notices of 6 October 2008.  For example, they did not identify any specific way in which their joint income had been incorrectly recorded.  The one exception was that Mrs G argued that her CTB applicable amount had been wrongly calculated, as she said it should have included the disability premium, as she had been in receipt of the disability credit as part of her WTC award.  Certainly, a claimant who has the benefit of the WTC disability credit is, in principle, entitled to the CTB disability premium (see Council Tax Benefit Regulations 2006 (SI 2006/215), Schedule 1, paragraphs 12 and 13(1)(a)(i)).  So what happened in the present case?

 

73. In the initial tax credit award notices (for 2004/05) on file, Mrs G did not receive the disability credit (HMRC letters dated 10 February 2005 and 2 August 2005).  She was subsequently awarded the disability credit for at least a part of the 2005/06 tax year (HMRC “in year” letters dated 20 September 2005 and 6 February 2006).  This had also been confirmed in the HMRC e-mail to RMBC dated 26 October 2007.  However, HMRC subsequently issued a final decision dated 5 August 2008 on Mrs G’s tax credit entitlement for 2005/06, under which the disability element was not included.  The result, inevitably, was that the final re-assessed weekly amounts of WTC due for 2005/06 were less than those actually paid at the time, creating a WTC overpayment.

 

74. It is not entirely clear when the claimant first raised the issue of the WTC disability premium with RMBC.  She certainly did so in a letter dated 23 February 2008.  That in turn prompted a rather unsatisfactory reply by RMBC dated 22 May 2008, which referred to the incapacity requirements for the CTB disability premium, rather than the WTC disability credit route.  However, the fact remains that the only appeal before the FTT in the present case was the appeal against the decision letters dated 6 October 2008.  By that time, HMRC had issued their final decision for 2005/06 and the disability credit had been withdrawn for that year.  RMBC was accordingly right not to include the disability premium as part of the claimant’s applicable amount for 2005/06 when calculating her CTB entitlement.

 

75. In this context I acknowledge that Mrs G states that she lodged an appeal against the HMRC decision dated 5 August 2008.  Indeed, her correspondence on file dated 27 May 2009 confirms that, referring to an appeal dated 26 August 2008.  It was plain to me that Mr and Mrs G felt as frustrated in their dealings with HMRC as they were with RMBC.  Of course, although Mrs G would have had a right of appeal against the final HMRC decision notice on her entitlement for any given tax year, she would not have a right of appeal against a tax credits overpayment decision itself (Tax Credits Act 2002, section 38).  There is no further record on file that relates to the fate of that tax credits challenge. At the oral hearing Mrs G was not able to give me any firm information as to the progress of her tax credits appeal, if any.  The most likely explanation is that the HMRC appeal was treated as one against the overpayment decision, and accordingly non-appealable.  In the circumstances I have no option but to proceed on the basis that the HMRC decision dated 5 August 2008 was correct.  If Mrs G believes that she still has a valid and outstanding appeal against an HMRC decision, that is a matter she will have to take up with HMRC.

 

76. My conclusion, therefore, is that RMBC’s composite decision dated 6 October 2008 was, in essence, correct, even if the letters were incorrectly addressed.  In re-making the FTT’s decision dated 26 October 2009, I accordingly confirm the substance of the authority’s composite decision of 6 October 2008 and dismiss the claimant’s appeal against that decision by RMBC.  The decision that the FTT should have made is as follows:

 

“The decision under appeal to the First-tier Tribunal is the composite decision by Rochdale MBC contained in its decision letters dated 6 October 2008 with the covering letter dated 9 October 2008.  This is the only decision which was subject to a valid in-time appeal. Although those letters were addressed to Mr and Mrs G, the composite decision is to be treated as a decision on Mrs G’s claim alone. In all other respects the substance of Rochdale MBC’s composite decision of that date was correct and is confirmed (e.g. as regards periods and rates of entitlement to council tax benefit).  Accordingly, the claimant’s appeal against that composite decision is dismissed.”

 

The Upper Tribunal’s analysis: a summary so far

 

77. At this stage it may be helpful to summarise the key conclusions from this analysis so far.  They are as follows:

 

(1)             As at 21 September 2007, following Mr Commissioner Rowland’s decision in CH/2995/2006, the operative CTB decision was that dated 27 September 2004, making an award of full CTB from 13 September 2004; the trio of defective decisions dated 2 February 2005, 7 April 2005 and 25 June 2005 were of no effect.

(2)             The decision of 6 November 2007 awarded CTB of £645.45 for the period from the date of claim (12 July 2004) until the end of the financial year (31 March 2005); at the same time summons costs were removed leaving Mr and Mrs G’s council tax account for 2004/05 as clear.  Any appeal against the decision relating to CTB entitlement for 2004/05 had lapsed.

(3)             The further decision letters dated 6 November 2007 and relating to CTB entitlement from 1 April 2005 and for the 2005/06 and 2006/07 financial years were not subject to a valid in-time appeal.

(4)             Those further decision letters dated 6 November 2007 were superseded by the decision letters dated 7 March 2008, relating to the period from April 2005 until March 2009, which were not subject to a valid in-time appeal.

(5)             The decision letters dated 7 March 2008 were in turn superseded by the composite decision dated 6 October 2008, relating to the period from 8 August 2005 until 31 March 2009, which was subject to a valid in-time appeal.

(6)             The FTT preliminary hearing dated 6 July 2009 involved an inadvertent breach of natural justice, as DTJ Pinder was unaware of Mrs G’s second postponement request; however, no action needs to be taken as the FTT simply issued further case management directions and there was no prejudice to Mrs G.

(7)             The FTT’s decision on 29 October 2009 involved an error of law and is set aside. The appeal before the FTT was only in respect of the composite decision dated 6 October 2008. The Upper Tribunal re-makes the decision in the terms set out at [76] above.

(8)             These proceedings do not concern any decision taken by RMBC in relation to Mrs G’s CTB entitlement with effect from 1 April 2009.

 

78. This is not, however, the end of the matter.  Mr and Mrs G have raised two further matters in the course of these proceedings.  They concern the true identity of the CTB claimant in this case and the status of the CTB claim form dated 19 June 2006.  In my view both of these questions need to be resolved, or at the least the subject of some comment, as the same issues may arise again on any further appeals before the FTT.

 

Who is the claimant for the purposes of council tax benefit?

 

The claimant’s case

79. This is a topic which Mr and Mrs G regard as of paramount importance.  They have been insistent throughout these proceedings, as they were in CH/2995/2006, that Mrs G is and has always been the CTB claimant, that Mr G had never been the CTB claimant, and that RMBC had acted unlawfully in repeatedly referring to Mr G as the CTB claimant and writing to him in that capacity.

 

The local authority’s case

80. At the oral hearing, Mrs Lumb accepted that Mr and Mrs G had in effect nominated Mrs G as the CTB claimant, as was their right. She also conceded that RMBC had sometimes written to Mr G in relation to CTB matters, when in fact the authority should have written to Mrs G.  She noted that the position was complicated by the fact that whereas only one member of a couple can claim CTB, they are jointly and severally liable for council tax itself. However, she readily accepted that Mr Commissioner Rowland had set out the legal position correctly at paragraph 3 of his decision in CH 2995 2006 (see [10] above).

 

The Upper Tribunal’s analysis and conclusion on the question of claimant status

81. The FTT’s decision correctly identified Mrs G as the appellant, and so this issue is not directly relevant to the disposal of the present appeal.  Thus it can be dealt with shortly.  I accept, as the parties are also agreed, that the legal position is as set out by Commissioner Rowland in paragraph 3 of his decision in CH/2995/ 2006.  Mrs Lumb has very fairly accepted that RMBC has repeatedly written to Mr G about CTB entitlement when such correspondence should have been directed to Mrs G.  This is, ultimately, a customer service issue. It does not affect the decision as to whether the FTT erred in law in any way.  In future RMBC will doubtless try to ensure that letters about council tax benefit entitlement matters are sent to Mrs G whereas letters about council tax liability issues are addressed to both Mr and Mrs G.

 

What is the status of the CTB claim form dated 19 June 2006?

 

The claimant’s case

82. At the claimant’s request, and following a direction by the Upper Tribunal, RMBC produced a copy of what it asserted was a CTB claim form dated 19 June 2006.  The relevant boxes on this claim form had been completed to state that Mr G was the claimant and that Mrs G was his partner.  The final page included signatures to the same effect.  Mr G was adamant that this document was a forgery.  It had, in his submission, been recently and fraudulently drawn up by RMBC in order to “put him in the picture as the claimant”.  He accepted that a claim for CTB had been made on 19 June 2006, the same day as the appeal tribunal hearing that led to the appeal to the Commissioner in CH/2995/2006, and that he and his wife had visited the council’s offices on that date immediately after the hearing for that purpose.  He described how the RMBC counter clerk, a Mr Khan, had completed all the information on-line on his computer.  Mr G categorically denied that a paper claim form had been completed, either by himself or his wife, and indeed either in the course of that interview or at any other time on that date.

 

83. In the course of his submission at the oral hearing, Mr G made a series of further applications for the Upper Tribunal to make directions (i) requiring Mr Khan to swear a statement of truth as to what took place between them at the interview on 19 June 2006; (ii) requiring Mr Khan to attend as a witness at any further hearing of the Upper Tribunal; (iii) requiring the disclosure of Mr Khan’s notes, whether clerical or computer-based, relating to that interview; and (iv) requiring RMBC to produce the original version of the disputed 19 June 2006 claim form for inspection.

 

84. I pointed out to Mr G that he was making a serious allegation about the 19 June 2006 claim form and asked him what possible motive RMBC could have for fabricating evidence, and in particular for, as he argued, fraudulently concocting a claim form purporting to be made by him, rather than by Mrs G.  As I understood his argument, Mr G’s submission was that RMBC were seeking to cover up their own maladministration of his wife’s CTB claim over a long period of time.  He also argued that it was very likely that RMBC had parallel but separate files for himself and his wife, and that this was the root cause of any alleged overpayment of CTB.

 

The local authority’s case

85. Mrs Lumb strongly rejected any notion that RMBC had in any way fabricated evidence.  She pointed out that any member of staff who acted in such a fashion would be acting unlawfully and also in breach of their contract of employment with the authority.  She accepted that she had not been present at the interview on 19 June 2006 and could not comment on what may have been said at that meeting.  However, she explained that she had been a council employee since 1989 and was fully familiar with its processes. Mrs Lumb explained that CTB claims are now made electronically.  However, in 2006 claim forms were still being made in paper form.  She explained that the normal procedure then was for the counter clerk to complete the form in discussion with the claimant and for the claim form to be handed back to the member of public to check and sign.  The claim form would then be retained and processed by the authority.  Once the form had been scanned into the authority’s computerised records management system, the original paper copy would be destroyed as confidential waste.

 

The Upper Tribunal’s analysis and conclusion on the 19 June 2006 CTB claim form

86. This issue, again, is not directly relevant to the disposal of the present appeal.  The composite decision of 6 October 2008 shows no break in CTB entitlement in or around June 2006.  There has also been no challenge by Mr and Mrs G to the other information included on the disputed claim form, e.g. as to family composition or household income.  However, the seriousness of the allegation made, and the likelihood that it may be repeated, means that on balance it should be addressed by the Upper Tribunal.

 

87. There is no doubt in my mind that both Mr G and Mrs G genuinely and sincerely believe that the claim form of 19 June 2006 has been fabricated by RMBC staff.  However, the only evidence to support that allegation is Mr G’s account (supported by his wife) of what happened at the interview with Mr Khan, and in particular his insistence that all of the CTB claim data was entered by Mr Khan on line and that no hard copy claim form was handed over. However, I simply do not accept Mr G’s account (and by extension the claimant’s) as credible.  Mr G is asking me, in effect, to believe that he has a perfect recall of every detail of an interview at the council’s offices on a date more than 5 years ago, which was just one meeting in what has plainly been a long, drawn-out and bitter relationship with the council.  In my view the frustration that he has felt as a result of what he perceives to be a vendetta against him and his wife by RMBC has resulted in what is, objectively speaking, testimony which is unreliable in its details.  I regard it as far more likely that Mr G signed the 19 June 2006 claim form as the claimant “in the heat of the moment” in the immediate aftermath of the appeal tribunal hearing.

 

88. I acknowledge, of course, that Mrs Lumb was not a witness to that interview on 19 June 2006 and cannot give first hand evidence of what took place.  However, I found her explanation as to office procedures to be much more plausible (and indeed as consistent with what I know is standard practice in many other local authorities).  My only uncertainty is as to whether the contents of the body of the claim form dated 19 June 2006 (rather than the signature boxes) were completed by Mr G (or Mrs G) or by Mr Khan on their behalf.  However, either way I am satisfied that the claim form of 19 June 2006 was genuine.  There are a number of other reasons why I reject Mr G’s submissions on this point.

 

89. First, the signatures on the final page of the 19 June 2006 claim form are, so far as I can tell, identical to those on the original claim form of July 2004.  Mr G, in his written submissions, sought to make great play of the fact that various boxes on the final page have been left empty, but these only apply to those claiming benefit on behalf of others. 

 

90. Secondly, such contemporary documentation as is available confirms that Mr and Mrs G were sent a hard copy claim form by RMBC a month or so previously, following an earlier adjourned appeal tribunal hearing on 8 May 2006 (see RMBC letter of that date). Similarly, on 24 July 2006 RMBC wrote to Mr G (not Mrs G) acknowledging the 19 June 2006 application (which seems to have been processed on 20 June) and asking for further information.  I do not regard the later CAB letter of 30 August 2006, doubtless written on the instructions of Mr and Mrs G, and referring specifically to “Mrs G’s new claim” for CTB on 19 June 2006 as undermining this conclusion.

 

91. Thirdly, and leaving aside the reasonable assumption that a public authority such as RMBC will seek to act within the law at all times, I find that there is no rational motive for RMBC to act in the fraudulent way alleged.  If the authority has, as here, been repeatedly corresponding with Mr G (rather than Mrs G) as the CTB claimant, and if Mr and Mrs G have regularly complained about that failing, as they undoubtedly have, then realistically the most likely responses by any council are (unfortunately) either to ignore the complaint altogether (as appears to have happened here for a period of time) or belatedly to accept that an error was made and that steps will be taken to try to ensure that there is no repetition (as Mrs Lumb undertook at the oral hearing). 

 

92. I therefore conclude that the notion that RMBC fabricated the 19 June 2006 claim form is quite simply fanciful.  The suggestion that this was done to create parallel claims by Mr and Mrs G and so to create an artificial overpayment is equally implausible and cannot withstand rational analysis, for at least two reasons.  First, RMBC has expressly stated that it is not seeking to recover any overpayments of CTB for the periods in question (there may be a separate issue about liability for council tax arrears and related summons costs).  The second reason is that claims to CTB by a couple are assessed on a household basis, taking into account both partner’s circumstances and income.  This case has been subject to repeated and detailed checks by RMBC, especially since Mr Commissioner Rowland’s decision.  There has also been an investigation by the Local Government Ombudsman, following a complaint by Mrs G, which found nothing amiss.  Even if it were possible within the authority’s system of audit and other financial controls (as to which I did not receive evidence and did not consider it necessary to inquire) for Mr and Mrs G to be paid their proper CTB entitlement twice over, I am entirely satisfied that it would have come to light long ago.

 

93. In reaching this conclusion I also formally dismiss Mr G’s applications for the further directions as set out at [83] above (Tribunal Procedure (Upper Tribunal) Rules 2008, rule 6).  As to (i), even if Mr Khan were available to give evidence, I doubt very much if he could recall anything of value about the interview on 19 June 2006 at this distance in time, more than five years later.  As to (ii), I am satisfied that there is no need for any further oral hearing before the Upper Tribunal.  As to (iii), even if Mr Khan’s notes were available, they will not be of any assistance in resolving either the relevant legal or material factual issues on this appeal.  As to (iv), I accept Mrs Lumb’s account as to RMBC’s entirely sensible records management systems; I find that the original version of the 19 June 2006 claim form was destroyed long ago.  The fact that only a copy is now available does not mean that there was not an original in existence in the first place.  I am certainly not prepared to draw the sort of adverse inference against RMBC which Mr G argued for (see by analogy Commissioner’s reported decision R(IS) 11/92).  In making these rulings I am also taking into account the overriding objective in rule 2, and in particular the need to act proportionately.

 

 

 

 

RMBC’s subsequent CTB decision dated 4 June 2010

 

94. Mrs Lumb informed me that, before it was aware of the current proceedings before the Upper Tribunal, the local authority had carried out a further review of Mrs G’s entitlement to CTB in the light of DTJ Dwyer’s decision taken at the FTT on 26 October 2009. This further review had taken some time because of the amount of documentation involved.  It had resulted in RMBC issuing a decision letter dated 4 June 2010.  A copy of that decision letter is not in the papers before me and, of course, is not subject to appeal in these proceedings in any event.  However, I note that the Local Government Ombudsman (LGO) describes the outcome of that decision in terms of being that “the details included in the Council’s letter of 9 October 2008 will not be amended”. Mrs G has lodged an appeal to the FTT against that new decision under reference SC/947/10/04503.  That appeal was listed for hearing on 20 May 2011 but was sensibly adjourned by DTJ Dwyer pending the outcome of the present proceedings before the Upper Tribunal.

 

95. Obviously, the merits or otherwise of RMBC’s subsequent decision of 4 June 2010 are not before me.  I simply note for the record three matters which the FTT hearing that appeal will doubtless wish to bear in mind when considering that appeal. 

 

96. The first is that RMBC has apparently sought to argue that the new appeal was not duly made as no grounds of appeal were provided by the claimant. 

 

97. The second is that – assuming for present purposes that the LGO’s description of the matter is accurate – the decision of 4 June 2010 may, properly construed, actually be a refusal to revise what I have described as the composite decision of 6 October 2008.  As such, it would have left the decision of 6 October 2008 unchanged.  Furthermore, a refusal to revise a CTB decision is not in itself a “relevant decision” that gives rise to a further right of challenge: see Child Support, Pensions and Social Security Act 2000, Schedule 7, paragraphs 1, 3 and 6 and also R(IB) 2/04 at paragraphs 38, 53 and 188.  Rather, in those circumstances any appeal is against the original decision (as either revised or not revised).  The original decision of 6 October 2008 is, of course, the subject of the present proceedings.  The new appeal may therefore raise a question of issue estoppel.  In summary, this principle may stop a party from re-litigating an issue that has already been determined, either in the same or earlier proceedings between the parties (see Watt (formerly Carter) v Ahsan [2007] UKHL 51, [2008] AC 696).

 

98. The third is that, depending on the view it takes on the two points noted above, the FTT may feel it necessary to make further enquiries to establish the fate of Mrs G’s appeal against the HMRC decision in relation to her tax credits award.

 

Concluding comments: the need to co-operate with the tribunal generally

 

99. All parties are under an express statutory obligation both to help the FTT and the Upper Tribunal further the overriding objective of dealing with cases fairly and justly and also to co-operate with the tribunal generally: see rule 2(4).  The present appeal has been more difficult to resolve than it needed to be because of the failures of both parties to pay sufficient heed to that requirement.

 

100. The local authority’s original schedule of evidence, as submitted to the FTT, was not so much poorly organised as not organised at all.  It comprised a total of 590 pages with no index.  Documents were included in random fashion, rather than listed in chronological order, and even the individual pages of particular letters were sometimes put in the wrong sequence.  Multiple copies of a large number of documents were included.  Some of the documents related to council tax liability issues, which were not within the FTT’s remit.  One document (page 450) is a copy of a UK Border Agency request for information in connection with a possible prosecution for immigration offences, directed to RMBC, but about a completely different individual altogether, living at a different address, whose personal data are included.  As indicated above, some of the local authority’s submissions to the FTT were not entirely helpful in terms of clarifying the basis for the decisions it had taken.  Bearing the state of the bundle in mind, it is therefore hardly surprising that the FTT had some difficulty in identifying the relevant decision under appeal.

 

101. The FTT’s difficulties in doing so were unfortunately compounded by the nature of many of the responses of Mr and Mrs G.  I acknowledge that they may have felt frustrated in their dealings with officialdom, but the sheer volume, frequency and density of their correspondence have made it difficult for both RMBC and the FTT to respond effectively. They have also added unnecessarily to the volume of paperwork before the FTT and the Upper Tribunal – the bundle now includes at least six copies of Mr Commissioner Rowland’s 15-page decision in CH/2995/2006, all of which appear to have been submitted by the claimant.

 

102. Both parties should therefore bear in mind the requirements of rule 2(4) described above in any further proceedings.

 

Conclusion

 

103. For the reasons explained above, I give permission to appeal against the decision of the Rochdale First-tier Tribunal dated 26 October 2009 under reference 947/09/00613.  That decision involves an error of law.  I therefore allow Mrs G’s appeal under section 12(1) of the Tribunals, Courts and Enforcement Act 2007.  The decision of the First-tier Tribunal is set aside (section 12(2)(a)).  The Upper Tribunal re-makes the decision in the terms set out above at [76] and at the head of these Reasons (section 12(2)(b)(ii)).

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 14 November 2011 Judge of the Upper Tribunal