Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CH/675/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Bradford on 10.01.12 under reference SC013/10/06165 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to decide whether the appellant was overpaid housing benefit between April 1997 and April 2010.  It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

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

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

(1)            The new hearing will be at an oral hearing. Whether the appellant attends that hearing is a matter for him but it may assist his case if he was to do so.

 

(2)            If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the Leeds Appeals Service Centre within one month of the date this decision is issued.

 

(3)            Within one month of the date of issue of this decision Craven DC will lodge with the First-tier Tribunal and serve on the appellant a completely new appeal response that addresses the matters set out in paragraph 43 below. 

 

(4)            The First-tier Tribunal should have regard to the points made below and should give the appellant a fresh opportunity to say whether he will attend a hearing once he has had sight of the further appeal response from Craven DC under (3) above.

 

REASONS FOR DECISION

 

 

Introduction

 

 

1.               This is an appeal by the claimant from a decision of the Bradford First-tier

Tribunal (SEC) dated 10.01.12. I will refer to this from now on as “the tribunal”. The tribunal upheld the revised decision of Craven District Council of 27.10.11 to the effect that the appellant had been overpaid housing benefit amounting to £30,259.68 for the period from the 7^th of April 1997 to the 4^th of April 2010 and that that sum was recoverable from the appellant.

 

2.               As is apparent from the statement of reasons, though importantly not before

then, the reasons the appellant had been overpaid housing benefit was because (a) he was not liable to make payments to his mother in respect of the caravan he claimed to rent from her (and so was not entitled to housing benefit in respect of the same), and (b) he was not liable to make the payments of ground rent in respect of the caravan (and so was not entitled to housing benefit in respect of those payments either).

 

Permission to appeal

 

3.               Permission to appeal to the Upper Tribunal was refused in the first instance by

District Tribunal Judge Holmes on 13.02.12 but was granted by Upper Tribunal Judge Wikeley on 9.05.12 on a number of potential grounds. One of those grounds - concerning the possible application of regulation 9(1)(b) of the Housing Benefit Regulation 2006 – was based on a wrong factual  assumption that the appellant lived in the caravan with his mother, and so has no relevance.

 

Craven District Council’s response

 

4.               A response to the appeal was filed by Craven District Council on 30.07.12.  It

does not say, as it ought to have done, whether the council supports the appeal to the Upper Tribunal or not. The response filed may have constituted a helpful appeal response document for the First-tier Tribunal[1], but it is inadequate as a submission document on whether the First-tier Tribunal erred in law in any of the ways raised as possibility by Judge Wikeley or otherwise.  The 30.07.12 response says nothing whatsoever about whether the tribunal erred in law in coming to its decision, yet that is precisely what the Upper Tribunal is concerned with.  Instead, the response reargues the facts of the case.  Here that in fact is quite a useful exercise given the failure of Craven DC to have set out the relevant facts clearly before, and it has helped identify that regulation 9(1)(b) of the Housing Benefit Regulations 2006 was not engaged.  But it takes the Upper Tribunal no further forward in deciding whether the tribunal erred in law.

 

5. Nor is it appropriate for the local authority to seek to file at the Upper Tribunal with its response further evidence that it could and arguably should  have put before the First-tier Tribunal. Yet that is precisely what Craven DC have done here by seeking to file with its response some 464 pages of what, as far as I can ascertain, is mainly (if not exclusively) evidence that was not before the First-tier Tribunal. In deciding whether a First-tier Tribunal erred in law it is not the task of the Upper Tribunal to review all the relevant evidence that could have been before the First-tier Tribunal.  The Upper Tribunal , and the Social Security Commissioners before it, has said time and again that the First-tier Tribunal will not err in law if it decides an appeal properly and fairly on the basis of the evidence put before it by the parties to the appeal, notwithstanding that evidence that is later produced shows that that decision may be wrong: and that applies whichever party fails to produce the evidence in a timely fashion. 

 

6. Moreover, when he granted permission to appeal Judge Wikeley did not asking to be supplied with copies of all previous claim forms or copies of the chits signed by the appellant and his mother.  What he wanted submissions on was whether the tribunal erred in law in not having those documents before it when those documents  had played a central part in the interview under caution that was before the tribunal.  It is possible that in an appropriate case such documents may be referred (and attached) usefully to an error of law submission made to the Upper Tribunal if it is being argued that sight of the missing documents would have made no difference to the tribunal’s approach, but no such argument is made here.  In these circumstances I do not see it as the Upper Tribunal’s role to read through all the 464 pages to see if they would have made no difference to what the tribunal decided. Two factors have borne on my consideration here.  First, the appellant has not had sight of these 464 pages (the Upper Tribunal sensibly having taken the view that as no assertion was being made (a) that the 464 pages was evidence that was before the tribunal below or (b) that the pages were otherwise relevant to the Upper  Tribunals exercise of its error of law powers, they did not need issuing to the parties) and so it would be unfair to rule on their relevance or cogency without having heard from him on them.  Second, because they have no impact on the first and last errors of law identified below.  I therefore make it plain that I have addressed and identified the errors of law in the tribunal’s decision without having had any regard to those 464 pages.  Whether Craven DC wish to refer to them in the further appeal response I direct in paragraph 43 below will be for them to consider in the light of all that is said in this decision.

 

7. Before leaving this topic, however, I should comment on one further matter,. This is Craven DC’s assertion that due to the complexity of the appeal it had “sought advice from the First-tier Tribunal as to what evidence the Tribunal required the Respondent to produce.  The First-tier Tribunal had before it the evidence it had requested”. The 464 pages referred to above do not show either the advice sought or that alleged to have been  given. Nor does the Upper Tribunal’s appeal bundle help on this either, as there is nothing in it that constitutes a request for advice to the First-tier Tribunal from Craven DC or any ruling from The First-tier Tribunal that it did not need to see the chits or the previous claim forms.  Rule 24(4)(b) of the Tribunal Procedure (First Tier Tribunal) (Social Entitlement Chamber) Rules 2008 requires the local authority to provide to the First-tier Tribunal with its appeal response “copies of all documents relevant to the case in [its] possession, unless a…direction states otherwise”.  In the absence of a direction from the First-tier Tribunal telling Craven DC not to provide copies of the chits or previous claim forms with the appeal response (and there is no such direction), those documents ought to have been included with the appeal response as they are plainly relevant to the case (being documents put to the appellant and relied on in the interview under caution).

 

8. Local authorities have been responsible for administering the housing benefit

(and council tax benefit) scheme within an error of law appellate jurisdiction for well over 10 years now.  In that period they ought to have learned what is required of them in terms of making appeal responses to the First-tier Tribunal and the Upper Tribunal.  Sadly this appeal shows that this is still not the case.

 

(a)   On an appeal to the First-tier Tribunal the appeal response needs to (i) set out accurately what the outcome decision under appeal is, (ii) summarise the relevant facts (with page references to pages in the appeal bundle), (iii) set out or incorporate the appellant’s grounds of appeal, (iv) set out the relevant law (both statutory and caselaw), (v) explain why on the facts and the law the decision under appeal was made and is justified, and is not wrong for any of the reasons suggested in the appeal, and (vi) have attached to it all relevant evidence in the local authority’s possession.

 

(b)  In an appeal response to the Upper Tribunal, however, the primary focus of the local authority should be on addressing the potential errors of law that have been raised in the grant of permission to appeal, as well as explaining why the First-tier Tribunal decision under appeal is otherwise legally sound or not (if necessary).  But I emphasise that the critical focus is on whether First-tier Tribunal erred in law and not whether the local authority’s decision that was appealed to the First-tier Tribunal was correct.  If local authorities still do not understand this distinction then they need to acquaint themselves with decisions such as R(A)1/72, R(IS)11/99, R(I)2/06, R(DLA)3/08 and R(Iran) –v-SSHD [2005] EWCA Civ 982, all of which explain are available on the Upper Tribunal, Administrative Appeals Chamber’s website and all of which explain what is meant by “error of law”.  They may instead, or in addition, wish to seek advice from their lawyers as to what is meant by “error of law” as the lawyers to the local authority are likely to have had experience of defending judicial review challenges where almost identical legal principles apply.  But one way or another local authorities need to be in a position to provide useful and relevant submissions to the Upper Tribunal on whether the First-tier Tribunal erred in law in its decision.

 

(c)   Moreover, in making its appeal responses to both the First-tier Tribunal and the Upper Tribunal the local authority is not adopting a position that is necessarily adverse to the claimant. Just like the Department for Work and Pensions on social security appeals, its role is akin to being a friend of the court (see CH/3240/2007 at para. 17), there to assist the tribunal in deciding what the correct level of benefit (if any) the claimant was entitled to: per Baroness Hale in Gillies –v- Secretary of State for Work and Pensions [2006] UKHL 2, R(DLA)5/06, at paragraph [41].   This role continues if an appeal progresses to the Upper Tribunal, with the local authority’s function primarily being to assist the Upper Tribunal in deciding if the First-tier Tribunal erred in law, and not simply to defend the First-tier Tribunal’s decision.

 

(d)  That all of the above needs to be said so long after local authorities ought to have become immersed in the housing benefit appellate structure is as frustrating as it is important.

 

The Appellant’s Observations in Reply

 

9. The appellant filed observations in reply on 24.09.12.  In those he refers to

having acted in good faith throughout, but that is not an issue before me, and seeks to reargue certain aspects of the facts of the case. The latter is unsurprising given (a) his lack of any legal help, and (b) that is precisely how the local authority have sought to argue the appeal the Upper Tribunal.  But I am not concerned with the factual merits.  What I am concerned with, I repeat, is whether the tribunal erred in law in its decision.

 

 

 

 

 

Upper Tribunal’s Decision

  

10. The appeal has been passed to me for decision by Judge Wikeley. No party

has sought a hearing of this appeal to the Upper Tribunal and I am satisfied, in any event, that the appeal can be decided without a hearing.

 

11. In my judgment, the decision of the tribunal was erroneous in law and has to

be set aside.  I identify and comment below on what I consider to be the main errors of law made by the tribunal. However, the First-tier Tribunal to which this appeal is being remitted should have regard to all of first five areas of concern raised by Judge Wikeley in his 9.05.12 grant of permission to appeal[2] insofar as they are not touched on below.  

 

Errors of Law

 

Appellant’s knowledge of the decision under appeal

 

12. Judge Wikeley expressed concern in his grant of permission to appeal about

whether the decision under appeal was identified adequately by the tribunal in its decision. I agree with that concern but am more concerned about the consequence this had for appellant in terms of his knowledge of exactly what was in issue in the appeal and, relatedly, whether the tribunal addressed properly the issue of whether it was in interests of justice to proceed with the hearing on 10.01.12 in the appellant’s absence.

 

13. The decision under appeal to the tribunal was said to be one notified to the

appellant on 11.11.10.  However, there is no decision letter (singular) of this date in the appeal papers setting out a decision that the appellant had been overpaid housing benefit from the 7^th of April 1997 or explaining why he had been overpaid. The tribunal sought to address this by saying the decision was, effectively, contained in 322 pages of benefit decision notices sent to the appellant by Craven DC on 11.11.10. At first blush it may seem a startling proposition to suggest that a decision letter to an unrepresented clamant can sensibly extend over such a vast number of pages.  Of more immediate importance, however, is the fact that, as far as I can identify, none of those 322 pages explain “the reason why there is a recoverable overpayment” as required by regulation 90 and paragraph 15(1)(b) of Schedule 9 to the Housing Benefit Regulations 2006 (the HB Regs”)[3].  That obligation encompasses two requirements: (i) the first, explaining why the person was overpaid for a past period; (ii) the second, why that overpayment was recoverable. In addition, if it was to be contended that Craven DC’s later letter of 19.11.10 was the notification of the decision under appeal, that letter fails to conform with paragraphs 2, 3 and 15(1)(b) of the Schedule 9 to the HB Regs. 

 

14. I turned therefore to Craven DC’s appeal response to the tribunal to see if that

explained clearly why the appellant had been overpaid and why that overpayment was recoverable from him.  It does not.  It sets out that the  11.11.10 decision under appeal is said to be:

 

“Following a change on circumstances and the death of the landlady (mother of client) an investigation began due to late notification of the change of circumstances. During the interview under caution the client advised that he had never paid any of the housing benefit payment to his landlady but had paid the ground rent to the park direct.  The excess of benefit never being paid over to the landlady.  On the death of the landlady the mobile home was inherited by the client and since this date the benefit was based only on ground rent charge.  The file has been passed to our legal department and we are awaiting response as to a court hearing”.

 

That is not a decision. It is merely the narrative of events that may have led up to a decision altering the appellant’s entitlement to housing benefit.  Moreover, the narrative hardly helps to identify what the decision might be exactly.  It talks of the appellant having a landlady but not paying the housing benefit over to her (though he did pay the ground rent). What does that prove or even indicate in terms of the housing benefit entitlement rules? Having a landlady may be said to show that the claimant has a liability to pay rent (per regulation 8(1)(a) of the HB Regs) and not paying the housing benefit on to the landlady is not necessarily inconsistent with the agreement to pay rent being a valid one. Nor does it say anything about why the alleged overpayment was under the law recoverable from the appellant.

 

15. The rest of the appeal response to the tribunal does not help to explain what

the 11.1.10 decision was either.  The only relevant law is said to be regulation 12 of the HB Regs; a provision which merely confirms that payments of rent and ground rent are eligible to be met by housing benefit.  None of the law concerning liability to pay rent (reg 8), deeming a person who is liable to pay rent not to be so liable (reg 9), or about overpayments of housing benefit (Part 13 of the HB Regs) is set out or even referred to in the response.

 

16. In these circumstances, I am entirely unsurprised that the appellant, as Craven

DC said in it appeal response to the tribunal, “has not actually identified the element of the claim recalculation he has appealed against”, as none of the 11.11.10 correspondence tells him why he has been overpaid, and those omissions are not made good by the appeal response to the tribunal.

 

17. However, that is not the end of the matter because Craven DC made another

decision dated 27.10.11[4].  The decision letter(s) was sent out to the appellant on 27.10.11. The tribunal said that this decision was on pages 554 to 566 of the appeal and that these pages made it clear that a further overpayment had been raised. That much I accept is true. But nowhere do those pages tell the appellant why an additional overpayment had arisen or why it was recoverable from him as paragraph 15(1)(b) of Schedule 9 to the HB Regs required.

 

 

 

18. On the same date of 27.10.11 a letter was sent to the appellant by Craven DC

saying that it had received information from the owners of the caravan park that the appellant’s mother did not have the right to sublet the caravan and that “this information has resulted in your Housing Benefit being cancelled from the start date of April 7^th 1997 a further overpayment has been raised against you which we will recover at the current rate until the appeal has be completed”. Of course, there is no legal mechanism to “cancel” an award of housing benefit (CH/2302/2002 and R(H)3/05 at para 55): the awarding decision has to be revised or superseded (and the grounds of revision or supersession established by the local authority). 

 

19. Of more concern, however, is just what this letter was communicating. It itself

could not have been a valid decision notice as it did not comply with paragraphs 2, 3 and 15 of Schedule 9 to the HB Regs, nor did the tribunal rely on it as any part of the revision decision. But what fresh decision was it making?  Reading backwards from what was said by Craven DC to the tribunal (see page 574) and Craven DC’s recitation of the facts in its written response to the Upper Tribunal, it would seem that the first overpayment decision on 11.11.10 was based on a revision decision to the effect that the appellant was not liable to pay a rent of £45 per week to his mother.  I say “seem” advisedly because Craven DC asserts in its response to the Upper Tribunal that this was a revision decision yet, as I understand it, it only purports to remove the appellant’s entitlement to housing benefit from 7.04.97 when the appellant’s award of housing benefit first began in April 1993. If the award did begin in April 1993 and had continued uninterrupted since then, then altering the award from 1997 would have been by way of supersession rather than revision.

 

20. At the time the first overpayment decision arose, however, it (again) seems that Craven DC also awarded the appellant an additional sum of housing benefit in respect of the ground rent his mother/landlord was liable to pay the mobile home park (see explanation on page 601), but it deducted this sum from the total overpayment owing. Whether this sum arose under regulation 104 of the HB Regs or was an entirely separate award that was then set-off against the overpayment is unclear. It is even possible that the appellant had been awarded this ground rent in his housing benefit award from the outset and what happened was that the 11.11.10 decision did not take this part of his award away.

 

21. What is also unclear is the basis on which this “ground rent award” of housing benefit was made to the appellant (whenever it was made). Given Craven DC’s explanation on page 601 it seems that this housing benefit award may have been made to the appellant under regulation 8(1)(c)(ii) of the HB Regs, on the basis that the person who was liable to pay the ground rent (the mother) was not doing so and it was reasonable to treat the appellant as being liable to make the ground rent payments.  The lack of clarity about the basis for this award is, again, not helped, by Craven DC failing to properly identify and explain the basis for it. Moreover, the tribunal can also be criticised for not identifying the legal basis for this award of housing benefit. But it is at least tolerably clear that it was this decision awarding the appellant housing benefit in respect of the ground rent payments that was changed by, what I have called, the second overpayment decision of 27.10.11.

 

22. Quite why the information that the appellant’s mother had no right to sublet the caravan to him impacted on the decision that it was reasonable to treat him as liable to pay the ground rent (if this was the basis for that decision) is unclear. On the face of it that information may have been relevant to whether the appellant had a liability to pay rent to his mother for his occupation of the caravan (subject to the other points made about this below), but that decision had already been made by the time of the information referred to in the letter, and the second overpayment decision, of 27.10.11.  But I struggle to see why his mother not being able to sublet the caravan to the appellant says anything about whether he ought to be deemed to be liable to pay the ground rent to the caravan park: these are completely separate questions and issues.

 

23. However my real concern at present is whether the written documentation made clear to the appellant why it was being said he had been overpaid and that overpayment was recoverable from him, particularly bearing in mind that he did not attend the hearing before the tribunal on 10.01.12.  It is only tolerably clear to me now why it was said he had been overpaid this second sum (though I am still unclear about why this second overpayment was said to be recoverable from him – as to which see paragraphs 41-42 below), and that is with the benefit of the oral submissions made by Craven DC to the tribunal on 10.01.12 and the explanation of the facts later contained in Craven’s response to the Upper Tribunal, but I cannot see how the appellant could have understood precisely why it was said he had been overpaid (or why the overpayments were recoverable from him) without either of these explanations. However, that is precisely the position he was in before the tribunal hearing date of 10.01.12.  The fact that the appellant has entered into lengthy correspondence with Craven DC both before and after the decision under appeal was made does not alter that conclusion, as that correspondence (and indeed his later correspondence with the Upper Tribunal), does not show to my mind any clear understanding on the appellant’s part about why under housing benefit law it was said he was not entitled to, and had been overpaid, housing benefit. Nor does the interview under caution because that (a) took place before any decision was made, (b) was an evidence gathering session (at times confused, from the transcript I have read) and because of this it was not its function to, nor did it, tell the appellant that he had been overpaid, why he had been overpaid, or why any overpayment was recoverable from him, and (c) as far as I can see, it did not touch on or question the validity of the ground rent payments made by the appellant

 

24. In R(H)3/04 a Tribunal of Commissioner was concerned, inter alia, with how what is now the Upper Tribunal should approach questions of prejudice caused to an appellant where the decision notices under appeal were in some sense defective.  The Commissioners said:

 

“74. That leaves the second main question argued before us which can be disposed of much more shortly. Again the question of the effect of any procedural defect in the steps taken by the authority will only fall to be considered by an appeal tribunal on a properly constituted appeal, by a particular appellant against a recoverable overpayment determination for a particular amount made against him pursuant to section 75. Here the introduction of a full statutory right of appeal to a judicial tribunal having full jurisdiction to rehear and redetermine for itself the factual basis of the determination as to recoverability as well as its legality, coupled with the requirement to give a full statement of reasons for its decision if requested, means that many of the arguments which formerly occupied the courts on judicial review applications concerning procedural defects on the part of an authority will cease to have so much practical effect.

75. Failures for example by a local authority to provide particulars of the facts, grounds, amount and period of the overpayment as required by regulation 77, or to notify the appellant of the existence of his rights of appeal, will for practical purposes in the normal case have ceased to cause any significant injustice to an appellant by the time a properly constituted appeal does get before the tribunal. This is because the appeal process affords him the opportunity to adduce evidence and have a full rehearing before a judicial body able to go into the factual basis of the claim that the money is legally recoverable from him, as well as any maintainable challenge to the lawfulness of the whole process. It may still be necessary, in an extreme case where the Council’s attempt at operation of the procedure has been so far defective or non-existent that the tribunal is satisfied there has never been a valid basis for a determination against the appellant at all, for the whole process to be held abortive and the appeal summarily allowed on that ground; but such cases of total rejection where the authority will have to abandon its attempt at recovery or start again will now be rarer than in the days when the only judicial control was by way of review.

76. Thus if the tribunal is satisfied on the facts before it that the case for a recoverable overpayment determination against the appellant is made out, incidental procedural defects in the local authority’s determination that no longer have any continuing practical effect and have not caused any injustice still unremedied by the tribunal itself will not in our judgment prevent it confirming the authority’s determination, or if necessary making its own findings and substituting its own decision as to the amount legally recoverable. Consequently we accept the arguments of the authorities and the Secretary of State summarised in paragraph 31 above, with the test of “significant prejudice” or “substantial compliance” explained in Haringey LBC v. Awaritefe (1999) 32 HLR 517 applied as indicated above to take into account what happens in the tribunal appeal process itself. By the same token we reject the arguments for the landlords that any past failure of procedure must be fatal to recovery, or that past administrative cost and delay is a sufficient prejudice in this context to deprive a tribunal of the ability to confirm a determination or substitute its own, even where the original failures of notification, etc., have ceased to be of any practical effect” (my underlining added form emphasis).

 

What this means, in my judgment, is that it is for the First-tier Tribunal to whom an appeal is made to be astute to identify any deficiencies in local authorities’ decision-making procedures that may prejudice appellants’ rights to a fair appeal hearing and, where such deficiencies are present, it is for the First-tier Tribunal to take the necessary steps to have those deficiencies corrected so as to ensure that they do not prejudice the appellant’s right to a fair appeal hearing.

 

25. In this case, for the reasons I have given above, I consider the appellant was substantially prejudiced before his appeal was decided by Craven DC’s failure to make clear to him why on the facts and the relevant law he had been overpaid housing benefit of £30,259.68 between 7.04.1997 to 4.04.10. 

 

26. However, as this is an appeal to the Upper Tribunal on a point of error of law by the First-tier Tribunal, the more critical issue is whether the tribunal erred in law in respect of this issue. In my view it did.  The best focus for considering whether it did is, in my judgment, in terms of the tribunal’s approach to whether it was in the interests of justice to proceed with the hearing in the absence of the appellant: per rule 31(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”). 

 

27. The tribunal did not expressly address rule 31 of the TPR in its decision notice or statement of reasons.  What it did say which was expressly relevant to rule 31 was in paragraph 3 of its statement or reasons where it said “[t]he appellant did not attend. He had made it clear in numerous letters that he would not attend.  Mrs F… did attend on behalf of the Local Authority”. No consideration is expressed to have been given to whether it was in the interests of justice to proceed with the hearing.  In my judgment, given the way the information had been presented by Craven DC (including the additional overpayment decision made after the appeal had been made which enlarged the original overpayment by almost £13,000), at a bare minimum some reasoning had to be given by the tribunal showing why it considered it was in the interest of justice to proceed with the hearing (and decide the appeal) in the appellant’s absence and with the case against him so poorly and obscurely articulated by Craven DC.  Its failure to do this renders it decision erroneous in law such that it must be set aside. 

 

28. I need not go so far as to address or rule on whether any tribunal could properly and fairly have decided to hear and decide the appeal without the appellant and with the written case against him being so unclear, as that is not what the tribunal here decided.  However on the evidence before me I find it difficult to envisage reasoning which would have not made it perverse and erroneous in law for a First-tier Tribunal to proceed and decide the appeal on 10.01.12.

 

29. Faced with the appeal as presented to it in writing on 10.01.12, and with an appellant who had said he would not attend the hearing, the tribunal was not powerless to act so as to remove the prejudice caused to the appellant. It had to make the proceedings before it fair and it could, and ought to, have addressed that by adjourning the hearing with either (a) directions to the local authority to file a replacement appeal response that properly set out and explained the factual and legal basis for its decision(s), (directions which I give below) or (b) directions in which the tribunal itself, having secured the necessary information from the presenting officer, explained the factual and legal basis for the decisions.

 

 

 

 

Licence to occupy the caravan

 

30. The tribunal found that the appellant had no legal liability to pay the £45 rent to his mother for his occupation of the caravan. One of its key reasons for so finding was because “the rules for the [caravan] park stated the subletting of a mobile home was strictly forbidden. …[the appellant’s mother]  did not therefore have the right to sub let. Any tenancy to her son the Appellant would have been a sub letting, and forbidden by Park rules”.

 

31. In granting permission to appeal Judge Wikeley asked whether the tribunal had fallen into the trap of assuming that because there was a clause against sub-letting in the mother’s lease with the mobile home park, for that reason alone there could have been no valid agreement between mother and son for him to occupy the caravan. He referred expressly to CH/2959/2006.  That decision is ample authority – if such authority is now needed - for the proposition that “an agreement to grant a tenancy remains valid and effective as between the parties to the agreement even though the landlord did  not have the power to grant an estate or interest which was binding on third parties”: per paragraph 21 of CH/2959/2006. In other words, the fact that the appellant’s mother’s head-lease with the mobile home park may have prevented her sub-letting to the appellant did not in law render invalid as between her and the appellant any agreement they had made to sub-let the caravan to him.  Further, even if that agreement only vested in the appellant a right to occupy the caravan as a licensee, such occupation payments under a licence could qualify for housing benefit: per regulation 12(1)(b) HB Regs 2006.

 

32. Regrettably, Craven DC has not sought to address this important point in its response to the Upper Tribunal.  Looking at the reasoning of the tribunal as a whole I am driven to conclude that it did fall into a material error of law in deciding that, because the mother’s lease with the mobile home park precluded her from subletting, the agreement with her son was in consequence invalid. Even if this view of the tribunal’s decision is wrong, however, I consider the tribunal still erred in law in failing to explain adequately in its reasoning the relevance of the head-lease’s terms to the validity of the agreement between the appellant and his mother.

 

 

33. I must stress, however, that the above does not mean that the agreement between the appellant and his mother for the sub-letting of the caravan was valid and so gave rise to a legal liability to pay rent (less so, if there was a legal liability to pay rent, that it was on a commercial basis and was not created to take advantage of the housing benefit scheme: per reg 9(1)(a) and (l) of the HB Regs  - which I think may have been alternative bases for Craven DC’s first overpayment decision).  Those are all matters that will have to be looked at again and it may be that there is other evidence which is relevant to whether there was a valid legal agreement between the appellant and his mother for the sub-letting of the caravan. All this decision is saying is that the terms of the head lease between the mobile home park and the appellant’s mother cannot make invalid the agreement between the appellant and his mother for his sub-letting of the caravan if that sub-letting agreement is otherwise valid. 

 

Chits

 

34. It is plain, as Judge Wikeley pointed out, that when interviewed under caution the local authority referred the appellant to “chits” he and his mother had signed that related to his weekly rental liability of £45 per week, and which seemingly had been provided to Craven DC over some years as proof of the liability and/or that rent had been paid.  Craven DC, however, then relied on an alleged admission by the appellant in the interview under caution (page 84) that he had in fact never paid his mother the £45 per week but had instead paid the ground rent direct to the mobile home park.  The tribunal found that the chits were “a fiction as the Appellant did not in fact pay the rent of £45 per week to his mother”.

 

35. As Craven DC was relying on the chits as relevant evidence (as showing a state of affairs that did not in fact exist, and thus went to whether there was a bona fide agreement for the appellant to rent the caravan), as I have said above rule 24(4)(b) of the TPR required it to provide copies of those chits with its appeal response to the First-tier Tribunal. Its failure to include the chits was a serious omission on its part.

 

 

 

36. Moreover, on my reading of the interview under caution, the position is less clear on whether the chits were “a fiction” or that the appellant never paid the £45per week rent to his mother. I say this because on sheet 18 of the interview under caution (“IUC”) the appellant refers to getting £180 of housing benefit per month (perhaps he meant every 4 weeks) for his weekly £45 rental liability, paying it into his bank and then going to his mother to sign the chits but on the next page he says that out of that money he paid his mother £45.  Matters are, however, unclear in the transcript because at this crucial stage the interviewer and the appellant are talking over each other.  That may call for the First-tier Tribunal to which this appeal is remitted to listen to the recording of the IUC.  I also note that on sheet 19 of the IUC it would seem that the appellant indicated that he (in part) discharged his rental liability to his mother by paying off her (lesser) ground rent liability to the mobile home park. Even if that was the case, however, that does not necessarily show that he was not liable to pay his mother £45 per week rent[5]. In addition, however, the appellant goes on in the IUC to indicate that although he did not pay the balance of the £180 to his landlord/mother, he used the money to pay for other items (such as food for her) and for caring for her (sheet 24 of the IUC), and that is what the chits covered. So although £45 was not exchanged between the appellant and his mother/landlord each week it may be arguable that the rent was met in kind or by other means.

 

37. In these circumstances I consider that the tribunal – in the context of its deciding that there was no legal liability to pay rent - needed to (i) consider what the chits actually said (and that would have required it to ask for copies of them from Craven DC), and (ii) address more fully the appellant’s evidence that he met the rest of his rental liability to his mother (after he had paid the ground rent for her), by buying her food and caring for he, or at least explain why it considered that these arrangements supported its conclusion that there was no legal liability to pay rent.  Its failure to do so renders its decision erroneous in law.

 

 

38. The factors referred to in paragraph 36 above may well be very relevant to the question whether a legal liability to pay rent is to be treated as a liability that does not count for housing benefit purposes because the agreement giving rise to the liability is not on a commercial basis: per regulation 9(1)(a) of the HB Regs. But that is not the basis on which the tribunal decided the appeal against the appellant and it is not clear to me from the tribunal’s reasoning that it grappled properly with the appellant’s explanations about how he discharged his rental liability.

 

Ground rent, regulation 8(1)(c)(ii) and recoverable overpayment

 

39. This error of law on the part of the tribunal concerns what I have termed above the second overpayment.  This is addressed in paragraphs 18-20 of the statement of reasons.  These set out:

 

“The Tribunal considered the fact that the Appellant had in fact paid the ground rent direct to [the mobile home park].  It was acknowledged by the…park that monthly payments of the ground rent had been paid by the Appellant.  However, these payments were made by him on behalf of his mother.  There was no legal liability between the Appellant and the …..park for him to make the payments of ground rent.  There was no agreement between the Appellant and the…park, at least during his mother’s lifetime.

 

The Appellant had no entitlement to Housing Benefit for the period in question.  The first decision of 11 November 2010 was made on the basis that there may have been a liability for him to pay the ground rent.  However, the Park rules made it clear that subletting was strictly forbidden.  There was also no agreement between the Appellant and the….park.  The payments of ground rent which he made to the trailer park were on behalf of his mother.  When these facts became clear and further consideration was given to the position, the revised decision of 27 October 2011 was made.  There was no entitlement to Housing Benefit.

 

Regulations provide that all overpayments are recoverable unless they arise in consequence of an official error. In this case, there has been no official error by the Local Authority.  Consequently the overpayment was recoverable…..”.

 

40. I struggle to understand how the tribunal was able to make the findings in the above passages on the evidence it had before it.  In particular, as the local authority had not properly evidenced the legal and factual basis of its 11.11.10 decision (the first overpayment decision), without more reasoning from the tribunal I do not understand what it based its finding that “there may have been a liability for him to pay the ground rent” on.  Perhaps more importantly, however, I do not understand how any decision could properly award benefit on the basis that the appellant may have been liable to pay the ground rent: he was either liable to pay the ground rent or he was not, and if he was not then as far as I can see he could only be entitled to housing benefit in respect of the ground rent if regulation 8(1)(c) of the HB  Regs applied[6].  But taking the tribunal’s reasoning on its own terms, the key flaw in the reasoning in my judgment is the lack of any evidence of the basis upon which Craven DC in fact awarded the appellant housing benefit for the ground rent. The failure of the tribunal to reason this issue out properly renders its decision erroneous in law.

 

 

41. Moreover, this confusion about the basis for the award of housing benefit in respect of the ground rent has an additional and perhaps crucial importance because if Craven DC made that award on a wrong factual basis then that gave (and gives) rise to a very real issue about whether that overpayment (if it was such) was an official error overpayment: an issue which manifestly in my judgment was not addressed properly by the tribunal simply saying that there had been no official error by the local authority. 

 

 

42. If it was the case that the ground rent award was made on 11.11.10 and was made on the basis that the appellant was liable to pay the ground rent to the mobile home park, in his evidence in the interview under caution the appellant had arguably made it clear that he paid the ground rent on behalf of his mother (see bottom of sheet 19 of the IUC) and did not say he was liable to pay the ground. On the other hand if the ground rent award was made on 11.11.10 and was made under regulation 8(1)(c) of the HB Regs then the interview under caution arguably provides no evidence that the appellant’s mother was not paying the ground rent; in fact what it seems to show is that he was paying the ground on her behalf.  In either case, however, the evidence at least gives to a series of issues that needed (and still need) to be explored by the tribunal, namely:-

 

(a)                      what was legal and factual basis that led to the ground rent award being made  to the appellant (and when was that decision made)?;

(b)                      if the local authority made a mistake in making that award of housing benefit to the appellant, was it an official error within regulation 100(3) of the HB Regs?;

(c)                      if it was  an “official error” overpayment, could the appellant at the time it was made to him (or set off against the first overpayment), or of any notice relating to it (presumably pages 553-566) reasonably have been expected to realise that it was an overpayment.

 

The tribunal’s failure to investigate and rule on these matters, or give reasons explaining why on the evidence these matters did not arise, renders its decision erroneous in law, and for this reason too its decision must be set aside.

 

Directions to Craven DC

 

43. Given the deficiencies in the appeal responses to date, I direct that within one month of the date of issue of this decision Craven DC will have filed with the relevant First-tier Tribunal office a completely fresh appeal response that:

 

(a)             has attached to it true and complete copies of the chits and all housing benefit claim forms completed by the appellant since, and including, 2.06.1995 (this is to show the basis on which the appellant has asserted entitlement to housing benefit over the years (e.g. has he ever claimed he was liable for the ground rent?);

 

(b)            gives a proper and complete history of all decisions made awarding housing benefit to the appellant since 1993, setting out the factual and legal basis for each award made. In particular, a proper and complete explanation must be given for the 11.11.10 and 27.10.11 decisions, including (i) whether (and if so on what basis) those decisions superseded or revised earlier decisions, (ii) whether the ground rent awarding decision was made on 11.11.10 or another date, and (iii) the evidence and law upon which the decision awarding housing benefit to the appellant in respect of the ground rent was made;

 

(c)             addresses properly and fully all alternative grounds on which it wishes to argue that the appellant was not entitled to housing benefit, why he was overpaid those sums and why they are recoverable from him;

 

(d)            addresses, in consequence of (b), whether the award of housing benefit  to the appellant for the ground rent was an “official error” overpayment, if not why not, and if yes, why the appellant could reasonably been expected to realise that it was an overpayment; and

 

(e)             attaches all other relevant evidence to the appeal response, and gives page references in the body of the written appeal response to all relevant evidence.

 

Oral hearing

 

 

44. I have directed that there be an oral hearing of this appeal. I cannot direct the appellant to attend that hearing, less so can I make him do so.  However, given the complexity of the appeal, it would almost certainly assist the First-tier Tribunal to decide this appeal if it was able to see the appellant and talk to him about the agreement he had with his mother to rent the caravan from her and the basis on which the ground rent was met by him. It is hoped that with the benefit of this decision and the further and better appeal response I have directed Craven DC to provide, he will better understand Craven DC’s case and what it is he needs to respond to it.

 

 

 

 

 

Conclusion

 

45. It is for the reasons given above that the tribunal’s decision dated 10.01.12 must be set aside.  The appeal will have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess once it has properly gathered all the relevant evidence and applied the rules correctly.

 

 

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 15^th January 2013