DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal.

 

The decision of the Leicester First-tier Tribunal dated 16 August 2011 under file reference 038/10/03490 involves an error on a point of law. The tribunal’s decision is therefore set aside.

 

The Upper Tribunal is in a position to re-make the decision on the appeal by the claimant against the Respondent City Council’s decision dated 14 July 2010. The decision that the First-tier Tribunal should have made is as follows.  The Upper Tribunal re-makes the decision accordingly.

 

The claimant’s appeal against the City Council’s decision dated 14 July 2010 is allowed.

 

The claimant’s claim for council tax benefit was made on 31 July 2009. The claimant had continuous good cause for a late claim and the claim is accordingly back dated to 29 May 2009.

 

The claimant was taking reasonable steps to dispose of No. 1 W Road from 17 April 2009 until 29 July 2009. During that period she was entitled to the statutory disregard under Paragraph 26 of Schedule 5 to the Council Tax Benefit Regulations 2006. With effect from 30 July 2009 she was no longer entitled to the benefit of that disregard.

 

The claimant’s entitlement to council tax benefit should be recalculated accordingly by the City Council.

 

 

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

 

 

REASONS FOR DECISION

 

The decision in summary

1. I allow the claimant’s appeal to the Upper Tribunal, as the First-tier Tribunal (FTT)’s decision involves an error on a point of law. The FTT’s decision is set aside. The Upper Tribunal is in a position to substitute (or to “re-make”) its own decision for the one that the FTT made.

 

2. The FTT should have allowed the claimant’s original appeal. It should have decided that the capital value of the claimant’s former home should have been disregarded in calculating her entitlement to council tax benefit (CTB) for so long as she was taking reasonable steps to dispose of that property. However, this was only for a period at the outset of the claim.

 

The background to the appeal to the First-tier Tribunal

3. The background facts to this appeal are quite complex but may be summarised briefly as follows. The claimant, a married woman, is disabled, having had a brain aneurysm in 2006. She and her husband, who acts as her carer, used to live at No. 1 W Road. The claimant’s mother-in-law, who was taken extremely ill in late 2008 and underwent very serious surgery, was released from hospital in May 2009 but was unable to look after herself at home. The claimant and her husband moved to the mother-in-law’s address, No. 33 H Road, on 6 or 7 May 2009 to care for her.

 

4. No. 33 H Road was a property rented by the mother-in-law from the City Council. It is right to note that the family had made right-to-buy applications for No. 33 H Road in February 2008 and April 2009. It appears that the plan may have been to fund the purchase of No. 33 H Road from the proceeds of sale of No. 1 W Road. On 17 April 2009 the claimant and her husband obtained a written quotation from a firm of solicitors for the charges associated with a sale. On 22 May 2009 they obtained a written valuation from a firm of estate agents for No. 1 W Road. The agents recommended the property be marketed at £139,500 and that offers above £135,000 be considered. It seems that the right-to-buy application foundered on the fact that the claimant and her husband had not been living at No. 33 H Road.

 

5. Sadly the claimant’s mother-in-law died on 28 May 2009. However, the claimant and her husband hoped to remain at No. 33 H Road, which had been adapted to suit a disabled person and which they felt was much better suited to the claimant’s needs than No. 1 W Road. However, the claimant and her husband were unable to succeed to the mother-in-law’s tenancy as they had not lived with her at that address for the required period. The City Council therefore initially refused to allow them to remain at No. 33 H Road, and eventually took possession proceedings in the local county court. The possession hearing was listed just before Christmas 2009. On 14 December 2009 the City Council relented, following involvement from solicitors and councillors, and the claimant and her husband were granted a new tenancy in their own names of No. 33 H Road.

 

6. The claimant and her husband have been ably assisted throughout by Mr D. Roberts, one of the City Council’s welfare rights officers. He pursued a claim for CTB on their behalf, essentially from the time they moved into No. 33 H Road until the grant of the new tenancy. There was some confusion as to when CTB claims had been made and by whom, and some delay in the City Council making decisions on those claims. However, on 14 July 2010 (doc 213) the City Council refused the claimant’s CTB application, deciding that she had capital above the relevant limit (in the form of the value of, or equity in, No. 1 W Road, where she was not living). The City Council’s further letter of 1 September 2010 (doc 229) explained that they were not satisfied that the claimant had taken reasonable steps to sell the property. The claimant appealed (doc 221), arguing to the contrary.

 

The First-tier Tribunal’s decision

 

7. The claimant’s appeal was heard by a FTT District Tribunal Judge in Leicester on 16 August 2011. The claimant was not there, but her husband was, accompanied by their representative. The City Council’s appeals officer also attended. The hearing took nearly an hour (doc 240).

 

8. The FTT dismissed the claimant’s appeal and upheld the City Council’s refusal to make an award of CTB (doc 246). According to the decision notice, the FTT concluded that “in all of the circumstances [the claimant] was not taking reasonable steps to dispose of the premises in issue”.

 

9. The FTT’s subsequent statement of reasons (doc 248) reviewed the issues, the evidence and the parties’ submissions in the case. The District Tribunal Judge correctly identified the key questions for decision as being (i) had the claimant taken “steps towards disposing of the property”; and (ii) “if so, whether they were reasonable” (doc 250 at [18]). He noted that the claimant’s representative relied upon the decision of Mr Deputy Commissioner (as he then was) Mark in CH/1915/2007 (doc 250 at [19]).

 

10. The FTT’s core conclusions were in a section headed “Findings of fact made by the Tribunal” (although the passage also included some of the FTT’s reasoning):

 

“20. I was not persuaded that the action taken by [the claimant] was such as to form a step towards disposing of 1 W Road. At that stage [the claimant] was not entirely certain how matters would proceed. She had taken steps that were at best preliminary in order to assist her to consider her options but they were no more than that. To suggest otherwise is to set the bar too low. The steps, as I find, should be those that would lead in the normal course of events to a property being marketed. Those taken were speculative. Indeed, the claimant herself wrote that she had taken no steps. It is submitted that the home that they were in was unsafe for her given her illnesses and disabilities but that is hardly consistent with her adopting the role of carer to her disabled mother-in-law as she as doing. Given that I could not find that steps had been taken it followed that none had been taken that were reasonable in the circumstances.”

 

The grounds of appeal to the Upper Tribunal

11. The claimant applied for permission to appeal. In short her representative argued that the FTT had failed to make sufficient findings of fact, in particular in relation to the circumstances surrounding the claimant’s housing options at the time in question.  Mr Roberts also argued that the FTT had applied too narrow a meaning to the term “step” and had failed to take into account all the factors that were relevant to assessing the reasonableness of those steps. He relied again on CIS/1915/2007.

 

12. The District Tribunal Judge refused permission to appeal (doc 259), saying that the decision he had made was one open to him on the facts and the law.  He fairly conceded, however, that another tribunal judge might have reached a different decision both on the question of “step(s)” and “reasonableness”. That alone, however, did not mean that he had erred in law.

 

The proceedings in the Upper Tribunal

13. Mr Roberts made a fresh application for permission to appeal to the Upper Tribunal. I gave the claimant permission to appeal, pointing out that the issue of “reasonableness” was an obvious question of fact, but that there was an arguable point as to whether the FTT had “set the bar too high” in its assessment as to what amounted to “steps”. I referred also to Mr Commissioner (now Judge) Rowland’s decision in R(IS) 5/05 (especially at paragraphs 15 and 16).

 

14. The City Council’s appeals officer resists the appeal. She does not directly address the question of whether or not the FTT was correct in its approach to what amounts to a “step” (issue (i) for the FTT). Rather, her written submission focuses on issue (ii) for the FTT, and explains why the City Council’s view remains that the claimant had not taken reasonable steps to dispose of the property. Her conclusion is that the claimant is “entirely at liberty” not to sell No. 1 W Road until she was in a position to buy No. 33 H Road “but she is not at liberty to do this and still expect the state to support her when she has deliberately chosen not to try and realise an asset on which she could reasonably be expected to support herself”.

 

15. Mr Roberts in reply for the claimant, repeats his argument that “a valuation and quote are clearly steps to the sale of a house, there may be other reasons to obtain a quote but in this case at the time the clear intention was to sell”. He argues that whether they were reasonable steps depends on all the circumstances, and that by analogy to CIS/1915/2007 the claimant in the present appeal had taken such reasonable steps.

 

The Upper Tribunal’s analysis

The relevant legislation

16. Regulation 33 of the Council Tax Benefit Regulations 2006 (SI 2006/215) provides that the upper capital limit for CTB is £16,000. When calculating a claimant’s capital, regulation 34(2) ensures that those types of capital specified in Schedule 5 are disregarded. Paragraph 26 of Schedule 5 provides for a disregard of:

 

“26.  Any premises where the claimant is taking reasonable steps to dispose of those premises, for a period of 26 weeks from the date on which he first took such steps, or such longer period as is reasonable in the circumstances to enable him to dispose of those premises.”

 

17. This disregard is in the same terms as the equivalent rules for housing benefit (paragraph 26 of Schedule 6 to the Housing Benefit Regulations 2006 (SI 2006/213)), income support (paragraph 26 of Schedule 10 to the Income Support (General) Regulations 1987 (SI 1987/1967)) and jobseeker’s allowance (paragraph 6 of Schedule 8 to the Jobseeker’s Allowance Regulations 2006 (SI 2006/207)). The case law on those parallel provisions is thus relevant.

 

The relevant case law

18. The case law of the former Social Security Commissioners and now the Upper Tribunal deals with both the first issue (what are steps?) and the second issue (what are reasonable steps?).

 

What are steps?

19. As a matter of law, the steps that can count for the purpose of the paragraph 26 disregard can start before the premises are put up for sale on the open market (see R(IS) 5/05 and CIS/1915/2007). In CIS/6908/1995 Mr Commissioner (now Judge) Rowland observed that “the 26 weeks runs, not from the date when the claimant first took some steps to dispose of the property, but from the date when he first took reasonable steps to dispose of it, which is not necessarily the date when it was first placed on the market.” Similarly, in R(IS) 5/05 the claimant had separated from her husband, moved out of the former matrimonial home (which appeared to be jointly owned) and had started divorce proceedings. Mr Commissioner Rowland ruled as follows at paragraph 15:

 

“I agree with [the representative of the Secretary of State] that the tribunal took too narrow a view of the phrase ‘reasonable steps to dispose of those premises’, given the evidence that divorce proceedings were on foot at the date of the hearing and it was unclear when they had been started. The bringing of ancillary relief proceedings within a divorce suit may have been a necessary preliminary step before the matrimonial home was put on the market and there also seems to me to be no reason why [the income support equivalent of paragraph 26] should not apply while arrangements are being made for a former partner to buy the interest of the claimant, which avoids putting the home on the market at all.”

 

20. Furthermore, as Judge Mesher noted in JH v Secretary of State for Work and Pensions [2009] UKUT 1 (AAC) (at paragraph 42), the Commissioner in R(IS) 5/05 also pointed out (at paragraph 16) that the first relevant steps might have been taken before the divorce proceedings were issued, for instance when correspondence with the claimant's husband about the disposal of the home had started.  Judge Mesher further observed (at paragraph 43) that in CIS/1915/2007 Mr Deputy Commissioner Mark had applied the same approach (at paragraph 15):

 

"...for this purpose, the Secretary of State appears to be proceeding on the basis that the claimant has an undivided share in the matrimonial home, which constitutes premises. Those premises are to be disregarded, and therefore the claimant's undivided share in the premises is to be disregarded, for a reasonable period, provided that the claimant is taking reasonable steps to dispose of them. The only practical way of disposing of the premises in the context of a break up of the marriage, and with a husband who will not co-operate, is through matrimonial proceedings."

 

21. Judge Mesher added (also at paragraph 43) that the Deputy Commissioner “went on to apply an eminently practical and sensible approach to regarding a claimant in such circumstances as continuing to act reasonably through temporary suspensions of proceedings, e.g. in an attempt to achieve reconciliation or because of family pressures or threats of violence.”

 

What are reasonable steps?

22. As I noted when giving permission to appeal, the issue of what amounts to “reasonable steps” must be a question of fact for the FTT. Whilst that assessment must take account of all relevant circumstances, the test is an objective one. Thus in R(IS) 4/97 the claimant’s husband owned some undeveloped farmland in a remote rural part of Jamaica. He had unsuccessfully advertised the property for sale between 1991 and 1992, before his wife claimed income support in 1994, after which they took further advice in this country. Mr Commissioner Howell QC held (at paragraph 22) that “taking advice from the CAB and placing the property in the hands of a specialist estate agent in this country ... are plainly capable of counting as ‘reasonable’, but will do the claimant no good unless they were the first such steps taken.” Remitting the case to a fresh tribunal, the Commissioner further observed that “if they are satisfied the earlier attempt was a hopeless one because the price was quite unrealistic or the media chosen unsuitable, they may properly disregard it. Then the question would become at what point after the claim did the claimant and his wife begin to take steps the tribunal considers reasonable, to start the period running” (at paragraph 22).

 

23. The issue of “reasonableness” was also to the fore in CIS/1915/2007. Mr Roberts relies in particular on the following passage in the Deputy Commissioner’s decision:

 

“17. On this appeal, the secretary of state has submitted that a more flexible approach should be taken to the question of reasonableness, so that if there is a break in the divorce proceedings, whether to see if a reconciliation could be achieved, or because of family pressures or threats of violence if they are proceeded with, all the factors need to be looked at to determine whether the claimant is taking reasonable steps in relation to the proposed divorce.

 

18. In my judgment, the secretary of state is right that in considering the reasonableness of the period taken by the claimant to secure a divorce and the resulting disposal of the premises, including any temporary suspension of such action, it is necessary to look at all the facts, including the pressures that were brought on this claimant.  The tribunal failed to approach the matter in this way, and on this account also it was in error of law.”

 

The approach of the present First-tier Tribunal

24. In the present case the FTT’s approach was as set out at paragraph 10 above. The District Tribunal Judge found that the actions taken (obtaining a solicitor’s quotation for fees and an estate agent’s valuation) were “at best preliminary in order to assist her to consider her options but they were no more than that. To suggest otherwise is to set the bar too low. The steps, as I find, should be those that would lead in the normal course of events to a property being marketed.” The actions taken were “speculative”; accordingly, as they did not amount to steps for the purposes of paragraph 26, there was no need to consider the reasonableness issue.

 

25. The FTT’s approach involves an error of law. Rather than setting the bar too low, the District Tribunal Judge set the bar too high. The case law referred to above demonstrates that a claimant may take action in advance of e.g. actually instructing estate agents to advertise the property on the open market which may still constitute reasonable steps for the purpose of the paragraph 26 disregard. I accept that there may indeed be some actions which are so preliminary or remote that they will not amount to the claimant “taking reasonable steps to dispose of those premises”. An extreme example might be idly leafing through the local free newspaper to get a feel for current property prices.

 

26. However, in the present case the claimant had taken two concrete actions, documented in writing, namely obtaining the solicitor’s quotation and the estate agent’s market valuation. These were undoubtedly “steps” for the purpose of the paragraph 26 disregard; whether they were “reasonable” was a separate issue. In ruling that the claimant’s case fell at the first hurdle the FTT erred in law. The error of law is such that I have no option but to allow the claimant’s appeal and set the tribunal’s decision aside. In reaching this conclusion I should clarify two points.

 

27. First, Mr Roberts appeared to argue before the FTT that the solicitor’s letter was an invoice which had been paid. The District Tribunal Judge rejected that argument (doc 250 at [16]), and was quite right to do so. It is clear from the papers that the solicitor’s letter was an indication of the likely charges for “your proposed sale” in the event of the firm being instructed. However, as explained above, obtaining such a quotation was at least a “step”.

 

28. Second, the FTT judge was obviously influenced in reaching his decision by his finding that the claimant “herself wrote that she had taken no steps”. The City Council has relied on this evidence throughout. This was a reference to the answer on a form completed by the claimant and her husband on 8 February 2010. In reply to the question “Are you taking steps to dispose of the property? E.g. Is it up for sale?” they ticked the “No” box and added by way of explanation “I was advised by the Leicester City Council not to rent or sell the above address”. This answer cannot carry the significance that has been attached to it. The question for the tribunal was whether the claimant was taking reasonable steps to dispose of the property between May and December 2009. The question on the form was asked in the present tense: “Are you taking steps to dispose of the property?” Mr Roberts has not suggested in these proceedings that the claimant was taking any steps at that stage (i.e. February 2010) to dispose of the property.

 

 

 

The appropriate disposal of this appeal

29. Having allowed the appeal and set aside the FTT’s decision, I then have to decide whether to send the case back for a fresh hearing or decide the underlying appeal myself. In my view it is highly unlikely that any new evidence is going to emerge. The case is also concerned with a relatively narrow period of time. In the circumstances the most proportionate course of action is for the Upper Tribunal to re-make the decision which the FTT should have made. This raises a number of distinct issues which I address in the next section of these reasons.

 

The Upper Tribunal’s decision on the substantive appeal

Introduction

30. The City Council’s decision to refuse the claimant’s application for CTB was taken on 14 July 2010 (doc 213), well after the period in question. The following issues need to be resolved: (i) what was the date of the claim for CTB?; (ii) could the claim for CTB be backdated?: (iii) was the claimant taking reasonable steps to dispose of No. 1 W Road?; (iv) if so, what was the date that she first started taking such steps?; and (v) if so, when did the capital disregard under paragraph 26 stop applying?

 

(i) What was the date of the claim for council tax benefit?

31. As noted at paragraph 6 above, there was some confusion as to various claims for CTB made by the claimant and her husband. The City Council’s decision dated 14 July 2010 was a belated determination of the claimant’s application made on a Department for Work and Pensions (DWP) form HCTB1. The claimant signed that form on 27 July 2009. It was date-stamped as received on behalf of the DWP on 31 July 2009. However, it was not received by the City Council until 3 September 2009. The City Council treated it as a claim for CTB as from 7 September 2009.

 

32. The case for the claimant, as put by her representative, was that this was a claim for CTB from 29 May 2009 (the day after the mother-in-law died) through until 13 December 2009 (the day before the new tenancy at No. 33 H Road was granted).

 

33. The FTT did not deal with the issue of the date of claim, other than to note the dates referred to in paragraph 31 above. The District Tribunal Judge sensibly considered that he did not need to deal with any issue of backdating given his decision that the claimant had not taken any steps to dispose of the property.

 

34. Mr Roberts points out that at the time the HCTB1 form was completed, the claimant was in receipt of income support. A claim for CTB could therefore be properly made via the DWP (regulation 69(4)(a)). Unfortunately the HCTB1 form includes no date of issue. In those circumstances the default position as regards the date of claim appears to be the date that the form was received by the DWP (regulation 69(5)(d)). There seems no reason why the claimant should be disadvantaged by a 5-week delay in the form being forwarded by the DWP to the City Council. The date of claim was thus 31 July 2009.

 

(ii) Could the claim for CTB be backdated?

35. A claim for CTB can be backdated for up to six months if the claimant can show continuous “good cause” throughout the period in question (regulation 69(14)). Good cause is a well known concept from the case law (see R(S) 2/63). In short, it is something that would probably have caused a reasonable person of the claimant’s age and experience to act, or fail to act, as the claimant did, having regard to all the circumstances (including the person’s state of health).

 

36. I take into account the following factors in this regard. First, the claimant is herself disabled and in receipt of disability living allowance and incapacity benefit. Second, she experienced a bereavement on 28 May 2009, her mother-in-law having passed away after a lengthy and distressing illness. Third, the claimant and her husband were also busy trying to ensure that they could stay at No. 33 H Road, involving extensive and doubtless time-consuming discussions and negotiations with e.g. housing officers and social workers. Fourth, insofar as I need to I also find on the balance of probabilities that an earlier claim for CTB was made for No. 33 Road but was mislaid or not acted on by the City Council.

 

37. I make that final finding of fact on the basis of Mr Roberts’s fax of 18 June 2010, referring to a telephone conversation he had had with a City Council liaison officer to the effect that a claim had been made on 1 June 2009 (doc 181). Further evidence that there was an earlier claim is in Mr Roberts’s letter of 20 August 2010 (doc 226), which includes the sort of small but telling detail which suggests that the account is accurate (namely that the customer services officer in July had commented that he had already had a CTB claim form from the claimant’s husband). I am not impressed by the City Council’s assertion that the claimant made no contact with the authority between 22 January 2009 and 1 July 2009 (doc 176), given the clear evidence of contact between those dates by the claimant’s representative (doc 6, dated 14 May 2009).

 

38. I am therefore entirely satisfied that the claimant has shown continuous good cause for the period from 29 May 2009 to 31 July 2009.

 

(iii) Was the claimant taking “reasonable” steps to dispose of No. 1 W Road?

39. I have already concluded that the actions of getting a quotation for legal fees and an estate agent’s valuation were “steps” within the meaning of paragraph 26. So were they “reasonable” steps? In my view the claimant’s actions have to be viewed in the context of all the relevant circumstances at the time in question. At the time these steps were taken, the claimant and her husband were actively pursuing a right-to-buy application in respect of No. 33 H Road. The intention, it seems, was to fund this purchase with the proceeds of sale from No. 1 W Road. My conclusion, as a matter of fact, is that these were steps which at the time they were taken were both necessary and reasonable with a view to disposal of the property in question. However, this is by no means the end of the matter.

 

(iv) What was the date that the claimant first started taking such steps?

40. As a matter of law, the 26 week period under paragraph 26 runs from the date that the claimant first took steps to dispose of the property, which may pre-date the claim for benefit (see CIS/562/1992 and SP v Secretary of State for Work and Pensions [2009] UKUT 255 (AAC)). The solicitors’ fees quotation was dated 17 April 2009 whilst the estate agent’s valuation was dated a little over a month later on 22 May 2009. Given that the impetus for these steps was the right-to-buy application, and the second version of that application was made on 15 April 2009, I conclude that the claimant first took such reasonable steps on 17 April 2009.

 

(v) When did the capital disregard under paragraph 26 stop applying?

 

41. The paragraph 26 disregard runs for “a period of 26 weeks from the date on which [the claimant] first took such steps, or such longer period as is reasonable in the circumstances to enable [her] to dispose of those premises”. However, as Judge Mesher noted in JH v Secretary of State for Work and Pensions [2009] UKUT 1 (AAC), “the disregard can only continue to apply while the claimant continues to take reasonable steps, subject to the limit at 26 weeks” (at paragraph 44). This is because paragraph 26 applies only “where the claimant is taking reasonable steps to dispose of those premises” (emphasis added).

 

42. Mr Roberts, the claimant’s representative, has consistently argued that the paragraph 26 disregard should apply for the period from 29 May 2009 to 13 December 2009, a period of just over 28 weeks. He argues that the claimant and her husband only did what was reasonable in the circumstances. He points to the clear written advice from the City Council’s housing manager (by letter dated 15 July 2009), advising that they “stop the process of letting or selling 1 W Road and that they re-occupy 1 W Road” and that the authority had served a notice to quit in respect of No. 33 H Road on the mother-in-law’s personal representatives. He adds that council officers also told the couple that if they were to sell No. 1 W Road, then as they were to be evicted from No. 33 Road they would be intentionally homeless.

 

43. As noted above, Mr Roberts relies heavily on the Deputy Commissioner’s decision in CIS/1915/2007. However, in my judgement this only takes him so far. Plainly, it is important to have regard to all the circumstances (CIS/1915/2007, paragraphs 17 and 18, see paragraph 23 above), including whatever pressures were brought to bear on the claimant at the relevant time. In CIS/1915/2007 the appeal tribunal had failed to do so, requiring Mr Deputy Commissioner Mark to allow the appeal and set aside the decision. That was a case in which the claimant had started divorce proceedings, had then come under intense family pressure to return to her husband in the matrimonial home, but remained fearful that she would be at risk of violence. As at 3 July 2006 the claimant had left the family home but was considering whether to return or to reactivate divorce proceedings to force its sale. The Deputy Commissioner went on to decide the case and substituted his own decision on the facts. He found as follows:

 

“21. I am therefore satisfied that at 4 July 2006, the steps taken by the claimant temporarily to suspend her divorce proceedings until she had moved to a new address and changed her name to secure her safety did not mean that she was no longer taking reasonable steps to dispose of the premises through divorce proceedings. She was taking such steps by moving home and putting herself in a position where she could safely proceed.”

 

44. The crucial point here is that the claimant in CIS/1915/2007 was taking what were reasonable steps in the particular circumstances of her situation at that time – moving to a new address and changing her name with a view to proceeding with the divorce if reconciliation proved to be out of the question – as part of the process of disposing of the property in question. Therein is the fundamental distinction with the circumstances in the present case.

 

45. On the facts of this case, there clearly came a point where the claimant and her husband were no longer actually taking any steps at all to dispose of No. 1 W Road. Rather, they were focussing all their efforts on trying to persuade the City Council to allow them to remain at No. 33 H Road. In CIS/1915/2007 the claimant was taking active and appropriate steps which were directly related to her divorce proceedings and thus the realisation of her interest in the family home. In the present case such steps as the claimant took were designed to secure her occupancy of a different property. It seems to me that this conduct is too remote to count as steps taken to dispose of the property in which they were no longer living.

 

46. The question then is when that point came. I recognise that it is important to take a flexible approach and to look at the question of reasonableness in the round “including any temporary suspension of such action” (CIS/1915/2007 at paragraph 18). I have already found that the first reasonable step was taken on 17 April 2009 (see paragraph 40). The further reasonable step of obtaining the estate agent’s valuation followed about a month later. The claim was effective as from 29 May 2009 (see paragraph 38). The City Council’s letter was written on 15 July 2009. The couple would necessarily have had to take some time to consider their options at this stage. On the balance of probabilities I would regard this as taking a further fortnight or so. After that point, I conclude that they had decided to do everything possible to remain at No. 33 H Road and were no longer taking any reasonable steps to dispose of No. 1 W Road.

 

47. My conclusion is therefore that the claimant was taking reasonable steps to dispose of No. 1 W Road from 17 April 2009 until 29 July 2009, with the claim for council tax benefit being effective from 29 May 2009.

 

48. I simply make the following two further observations. First, I do not doubt that the claimant and her husband found themselves in a very difficult position in the course of 2009. However, the wording of the disregard makes it clear that it only applies so long as reasonable steps were actually being taken to dispose of the property. Second, I place no reliance on the City Council’s comments about the current position in 2012 as regards No. 33 H Road, as that has no bearing on the position in 2009.

 

Conclusion

49. I conclude that the decision of the First-tier Tribunal involves an error of law for the reasons summarised above. I therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I also re-make the decision as above (section 12(2)(b)(ii)). 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 15 November 2012 Judge of the Upper Tribunal