Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/273/2013

ADMINISTRATIVE APPEALS CHAMBER CH/274/2013

CH/275/2013

Before Judge Mark

 

Decision:   

1. The application of the second and third named Applicants for permission to appeal is admitted notwithstanding that there has been no decision of the First-tier Tribunal on their application for permission to appeal.
2. Permission to appeal is refused in all cases.

 

REASONS FOR DECISION

 

1.     I held an oral hearing of this application on 7 October 2013 at which Mrs. N was represented by Mr. Philip Sutton of counsel, Mr. B represented both himself and Mr. S, and the London Borough of Redbridge was represented by Ms Jane Hodgson of counsel.

 

2.     In this case housing benefit was claimed by the first named Applicant, Mrs. N, between 1998 and 2009 on the basis that she was a single parent renting accommodation from the second named applicant, Mr. S.  In 2008 it was discovered that there was evidence that her husband, the third named applicant, Mr. B, was living with her during that time and that he was also the registered proprietor of the rented property, with Mr. S having no apparent interest in it.  Payment of benefit was therefore suspended in December 2008, but due to official error it continued to be paid until September 2009, when it was terminated.  By a decision dated 19 February 2010, the council determined that Mrs. N was not entitled to housing benefit from 6 July 1998 because the owner of the property was her partner, and that she was not entitled from 1 April 1999 because her entitlement to income support had been disallowed.  It further determined that she had been overpaid housing benefit of £96,990.29 for the period from 6 July 1998 to 27 September 2009 and council tax benefit of £8584.37 for the period from 1 April 1999 to 27 September 2009 which overpayments were recoverable from her.

 

3.     Mrs. N appealed.  This led to a number of revised decisions, the first of which, dated 30 July 2010, found that Mr. B lived at the property with Mrs. N throughout that period and owned capital in excess of £16,000 in addition to being the owner of the property.  This was a further ground for non-entitlement to benefit, as was a determination that the tenancy was not on a commercial basis and was created to take advantage of the housing benefit scheme.  In that decision the overpayments were found to be recoverable from Mrs. N and Mr. B.  The amounts of the overpayments in question were unchanged.  The appeal was then sent to the tribunal service.

 

4.     In the course of preparation for the hearing, the council made a further revision to its overpayment decision on 16 May 2011.  By this decision it was decided that the overpayment was recoverable from Mrs. N and Mr. S, but not from Mr. B.  They were found to be recoverable from Mr. S because he had received them, and because he had misrepresented that Mrs. N had a liability to pay him as landlord and owner of the property, when Mr. B was the landlord and owner.  However, the overpayment was found not to be recoverable from Mr. B because he had not failed to disclose information and there was no evidence that he had directly misrepresented information.  This was despite the fact that the council also found that Mrs. N had failed to disclose that Mr. B was the owner and landlord, on which basis, the rental payments would have been to him either directly or by was of payment to Mr. S as his agent.  It was also determined, as an additional basis for the non-entitlement decision, that the combined income of Mrs. N and Mr. B was too high for there to be an entitlement.

 

5.     This revised decision followed a direction from the tribunal dated 19 April 2011 that the council was to file a further submission dealing with the recovery of any overpayment.  There followed a further hearing on 13 October 2011 when directions were given for the council to prepare a submission on whether any overpayment of housing benefit was recoverable from Mr. B on the basis that he failed to disclose the true position, and that if the council wished to recover any overpayment from his, he was to be added as a party and served with a copy of the submission.  Mr. S had already been added as a party.  He was apparently resident in Pakistan and the addresses for him were all properties owned by Mr. B.  Documentation for him had been sent throughout to those addresses.  Directions were also given for evidence to be provided and submissions to be made by Mr. S, and, if he was added as a party, by Mr. B, and for notice of the hearing to be served on them.

 

6.     This led to a further revised decision of the council dated 21 October 2011, in addition to a further submission of 8 pages.  The new decision was that the overpayments were recoverable from all of Mrs. N, Mr. S and Mr. B.  In Mr. S’s case this was on the basis that the overpayments had been made to accounts in his name and that he had misrepresented Mrs. N’s liability to pay rent to him as the landlord/property owner.  In Mr. B’s case it was on the basis that he was the property owner and any rent liability was to him and he had used the income for his own purposes and was the person to whom the housing benefit had been paid.  It was also on the basis that he had lived with Mrs. N throughout the period as her partner and had colluded with the other two to obtain benefit by deception, and by his conduct and complicity had misrepresented relevant facts which had resulted in the overpayment.

 

7.     The hearing, on 25 January 2012, was attended by Mrs. N, who gave oral evidence and was assisted by a friend.  Neither Mr. S not Mr. B attended or were represented.  The tribunal dismissed the appeal from the revised decision of 21 October 2011 and concluded that the overpayment of housing benefit was recoverable from all three appellants and that the overpayment of council tax benefit was recoverable from Mrs. N.  A set aside application made by Mr. B on his own behalf and on behalf of Mr. S was refused.

 

Jurisdiction

8.     It would then appear that Mr. B, on behalf of himself and Mr. S, applied for permission to appeal.  Those grounds of appeal are at pp.1334 to 1339 of the present appeal bundle.  There was also an application for permission to appeal by Mrs. N.  Those grounds are at pp.1369-1375 of that bundle.  There followed a decision refusing permission dated 16 November 2012.  That decision identifies Mrs. N as the appellant and deals with the points raised in her application.  It follows that, contrary to the submission made on behalf of the council before me, she was clearly entitled to apply to the Upper Tribunal for permission to appeal.

 

9.     However, I can find no evidence that the application of the other appellants was ever dealt with.  In seeking permission to appeal to the Upper Tribunal, all that has been produced is the refusal to grant Mrs. N permission to appeal (p.1376).  It would seem that the First-tier Tribunal overlooked the application made by Mr. B and Mr. S.  The question that therefore arises is not whether I have jurisdiction to deal with Mrs. N’s application, as was assumed during the hearing, but whether I have jurisdiction to deal with the application of Mr. B and Mr. S.  I indicated at the hearing that I considered that I had such jurisdiction in the case of Mrs. N, and I am also satisfied that, for the reasons given below, I have jurisdiction to deal now with the application of Mr. B and Mr. S.

 

10. Regulation 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that

 

“A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal only if –

(a)   they have made an application for permission to appeal to the tribunal which made the decision challenged; and

(b)   that application has been refused or has not been admitted.”

 

11. Regulation 7 of the same rules provides that

 

“(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include –

(a) waiving the requirement;

  (b) requiring the failure to be remedied;

  (c) exercising its power under Rule 8 (striking out a party’s case); or

  (d) …. restricting a party’s participation in the proceedings.”

 

12. Regulation 2(1) sets out the overriding objective of the Rules as being to enable the Upper Tribunal to deal with cases fairly and justly.  This is stated to include dealing with them proportionately to their importance and complexity, the anticipated costs and the parties’ resources, avoiding unnecessary formality and seeking flexibility in the proceedings and avoiding delay so far as compatible with proper consideration of the issues.

 

13. I note that under regulation 38(1) of the Tribunal Procedure (First-tier Tribunal Rules) a party seeking permission to appeal must make a written application to the tribunal for permission to appeal.  However, permission to appeal can be granted without such an application if an application for a decision to be corrected, set aside or reviewed has been made and the tribunal treats it as an application for permission to appeal under regulation 41 of those Rules.

 

14. In HM v SSWP, [2009] UKUT 40 (AAC), Judge Gamble held that, even at the stage of writing his decision, he had no jurisdiction to deal with an appeal for want of jurisdiction where , by mistake, the First-tier Tribunal had sent the case to the Upper Tribunal believing that a judge had given permission to appeal following an application.  Judge Gamble dismissed the appeal, on the basis that an appeal could only be entertained after the First-tier Tribunal had dealt with the application for permission.  He does not appear to have considered either the power to waive the irregularity under regulation 7 of the Upper Tribunal Rules or the overriding objective under regulation 2 of those Rules.

 

15. By contrast, in MA v SSD, [2009] UKUT 57 (AAC), Judge Bano held that there was a discretion under rule 7 to waive the absence of any permission to appeal from the First-tier Tribunal, but he declined to exercise it in a case where no application for permission had been made and it was far too late for it to be made long before the case came before him.  In that case a judge of the First-tier Tribunal had purported to grant permission to appeal on an application made two years after the original decision and at a time when he therefore had no jurisdiction to grant such permission.

 

16. I have no doubt that Judge Bano was correct in determining that he had such a discretion under regulation 7.  If there is any doubt as to whether that regulation covers this type of case, it must be resolved in favour of the discretion existing.  The Upper Tribunal is required by regulation 2(3) to seek to give effect to the overriding objective when it exercises any power under its Rules or interprets any rule or practice direction.  It appears to me on that basis that I must interpret the reference to an application for permission to appeal in regulation 21(2) as including a reference to another application which is treated as an application for permission to appeal under regulation 41 of the First-tier Tribunal Rules.

 

17. It also appears to me that in dealing with matters justly, regulation 7 of the Upper Tribunal Rules must be construed as permitting waiver in appropriate cases of the failure to apply for permission to appeal or to await the outcome of that application.  In the present case, if, as was thought at the hearing, it was the application of Mr. S and Mr. B for permission to appeal that had been refused by an order refusing Mrs. N permission to appeal, there would seem to have been little point in expecting Mrs. N, who was unrepresented at the time, to make an application which she had been told had already been refused, and it would be wholly unjust to dismiss her appeal at a time when her time for making that application to the First-tier Tribunal had expired and could not be extended.

 

18. So too, as matters now appear to me, it would not be dealing with matters justly to refuse to entertain the applications of Mr. S and Mr. B just because the First-tier Tribunal seems to have overlooked dealing with their application.  It is true that in their case, as in MA v SSWP, they could go back to the First-tier Tribunal to ask it to deal with their application, but the result of that would be that it would be necessary to adjourn Mrs. N’s application so that the three appeals could be heard together, wasting the day with counsel on both sides already spent hearing her application.  Further, in the event that permission was refused, as seems probable, there would then be a further delay while the further application to the Upper Tribunal was dealt with.  In the event that it was dismissed, the council would also have been delayed for no useful purpose in recovering a very substantial overpayment of benefit.

 

19. I can see no sensible reason not to exercise the power that I have to waive the failure of Mr. S and Mr. B to obtain a decision on their application from the First-tier Tribunal and I waive the requirement of such a decision.

 

Merits of the applications

20. The non-attendance of Mr. B and Mr. S – Counsel for Mrs. N has asserted that because of their non-attendance, or at least that of Mr. B, she was deprived of the opportunity of cross-examining him as to matters of which he was aware and she was not and thus of enabling the tribunal to form a more favourable view of her case.  I have some doubt whether Mrs. N with the aid only of her friend could have conducted any effective cross-examination of anybody, but her real problem is that neither Mr. B nor Mr. S was under any obligation to attend.  Mr. S appears to have been in Pakistan and is unlikely to attend in person under any circumstances. 

 

21. Mr. B contended that he was misled by the council into believing that only the question of Mrs. N’s entitlement would be dealt with.  I do not accept that explanation for his non-attendance for three reasons.  First, the letter relied on was written in 2010.  Subsequently it was made plain to Mr. B that liability to repay would be dealt with.  The letter from the council enclosing the revised decision of 21 October 2011, which Mr. B clearly received, also included the council’s submissions to the tribunal on the repayment point.  He should have been in no doubt that liability to repay would be in issue at the hearing.  Secondly, all, or almost all, the issues relating to repayment, were also relevant to the question whether there had been an overpayment, which he knew was in issue at the hearing.  These included whether he and Mrs. N were living together during all or part of the period between 1998 and 2009, whether he was the true landlord, and the amount of his capital and income.  If he wished to contest any of these issues, the hearing was obviously the time to do so.  I note in this respect that Mr. B was, and is still, a solicitor and thus in a position to understand the issues.  Thirdly, the reason he gave me at the hearing for not attending was that if he was there he might contradict what she said and she might be under pressure.  He was not on very good terms with her and so did not want to face her.

 

22. I am satisfied that Mr. B’s failure to attend the hearing was not due to any misunderstanding on his part as to what the hearing involved, and if that is wrong, then any misunderstanding was not the result of the 2010 letter from the council.  His real reason was that he chose not to attend because he did not want to be at the hearing with his, by then, ex-wife at a time when ancillary relief proceedings in their 2010 divorce remained to be dealt with.

 

23. A further point made on behalf of Mrs. N was that Mr. B did not have a complete hearing bundle but only the first 600 pages or so of a bundle running to around 1300 pages at that time.  It may be that that was so, but it was not the reason why Mr. B did not attend the hearing.  Nor can I accept that if he had had the full bundle there was any prospect of his attending.  He chose not to go for the reason given.  Mrs. N had not applied for an order for his attendance and did not seek an adjournment at the time so that he could be ordered to attend.  It does not appear to me that any of the parties can point to any error of law or procedural mishap in this respect.

 

24. The Wednesbury unreasonable and lack of adequate reasons points - Counsel for Mrs. N then sought to challenge some of the findings of the tribunal as “Wednesbury unreasonable”.  For this purpose, I note that the evidence before the tribunal included the transcript of a taped confession of Mrs. N at a police interview that she and Mr. B had moved into the property together with their children as a family, that he had been there on and off during the period in question and that she had not told the council when he was there because if she had done so they would cut her benefit, and that the guilt was killing her.  In addition, there was a good deal of documentary evidence including Mr. B’s appearance on the electoral register for that address and his own signed statements on mortgage applications in 1998 and 2005 that he was living at the property with his family and, in the 2005 mortgage application that he had been there since 1998.  A third child had also been born to them in the period and there was no suggestion in the birth certificate that Mr. B lived anywhere but the property.  In the circumstances, it can be seen to be an uphill task for counsel to establish that the tribunal was acting unreasonably in accepting this evidence rather than other evidence to the contrary put forward by his client.

 

25. The first point made was that the evidence of Mrs. N to the police was that they had moved in to the property together but that he had not been there all the time.  It was unreasonable to deduce from this that they had lived together throughout the period from 1998 to 2009 without a break and the tribunal was also in breach of its duty to investigate in failing to investigate and make finding as to what dates he had not been there.  Had the claimant put forward a case based on her confession to the police, I would agree that these issues should have been investigated.  However, her case, which she stuck to, was that he had not moved in with her and had never been there.  With the exception of one period of a month in 2005 when there was some evidence that he had briefly moved into a flat with his parents, there was nothing that the tribunal could have investigated or could be expected to have investigated.  It was entitled to conclude in all the circumstances, including all the other evidence that, while there had been difficulties in the marriage, the property was the matrimonial home throughout.

 

26. Criticism is then made of the tribunal in that there is reference in paragraph 24 of the statement of reasons to some of the utilities being in Mr. B’s name.  It is said that was not evidence that he was living at the property bearing in mind that his children and “estranged” wife were living there.  I agree that the evidence does not necessarily indicate that he was living there, but it is what one would expect if he was there.  The absence of his name from any utilities would, in all the circumstances, have been an indication that he was not living there.  The tribunal was entitled to conclude, as it did, after taking into account the possibility that he was not living there but was paying the bills, that this was an indication that he was living there.

 

27. It is then said that the tribunal failed to put to Mrs. N that Mr. B appeared on the electoral register.  I doubt that this needed to be specifically put to her, but in any event when I asked counsel what she would have said if it had been put, the answer was that she did not know how his name came to be there.  Such an answer, if given to the tribunal, could only have fortified the tribunal in its belief that Mr. B was there, since if Mrs. N did not provide the information to the electoral register, there is no suggestion that anybody but Mr. B could have provided it over that 11 years period.

 

28. The next point put was that the tribunal did not address the possibility of the information on the mortgage application forms being a mortgage fraud being perpetrated by Mr. B – the case which was actually advanced by Mr. B before me.  If all, or most, of the other evidence had pointed in one direction in favour of Mrs. N, it may well be that the tribunal should have considered that possibility.  However, the mortgage application forms were only part of the evidence and there was a good deal of other evidence, including Mrs. N’s police statement, the electoral roll and other documentation giving not only the address of the property as the residence of Mr. B but also the landline at that property as his telephone number to contact him at home.

 

29. While I accept that, as pointed out by counsel, the voluminous documentary evidence produced by Mr. B in the bundle was not accurately described by the tribunal “fabricated for the specific purpose of supporting the deception”, it could properly be described as retained and produced for that purpose.  Most of it was directed to showing that Mr. B had been living separately at a flat at 26A G Street.  However, it was plain from the documents that Mr. B was using that property as an office and one of them, dated 22 September 2003, shows that he was applying for planning permission for a change of use to office use based on 7 years user of that property as an office.  At the hearing before me he contended that he only used the front room as an office and used the rest of the flat as his living accommodation.  That is not what is said in the letter of 22 September 2003 to which I have referred and he did not produce the planning application which would have revealed what he had told the planning authority.

 

30. It is sufficient for present purposes to conclude that while there appears to me to be an error in the tribunal’s reasons in this respect, the conclusion must be that the mass of documents produced were entirely consistent with Mr. B having an office at the premises, and having registered his car as kept there.  I am satisfied that properly considered they provided neither him nor the other appellants with any assistance.

 

31. Mr. B’s own statements to me in seeking permission to appeal were that he gave his address as the property in seeking finance and also gave false income details and stated that the deposit came from his savings because he was advised by his mortgage broker that he needed to do so to obtain the loans he was seeking.  Mr. B is a solicitor and in my judgment was well aware that he was being dishonest if he did this.  I make no findings as to whether he was lying on the mortgage application forms, but note that either he was lying on those forms or he was lying to me.  He also completed most of Mrs. N’s housing benefit applications and if he was telling the truth on the mortgage forms, he was knowingly putting lies into her mouth in those forms.  He is plainly not somebody whose evidence can be believed by any tribunal without clear outside corroboration.

 

32. The further issue that arose was as to the person or persons who received the rent paid by way of housing benefit.  The tribunal concluded in respect of a trust deed in which Mr. B purported to declare himself as holding the property on behalf of Mr. S that it was a sham.  The evidence was that the housing benefit was paid first by cheques sent to Mr. S at an address owned by Mr. B, and subsequently into an Isle of Man account in the name of Mr. S but that substantial payments out were made, mostly by cheques bearing a signature purporting to be that of Mr. S, to Mr. B.  There was no evidence of any payments out to anybody except Mr. B in person and to the building society which had granted Mr. B a loan secured by a  mortgage of the property.  Further, although Mr. B had stated that the deposit for the property in 1998 had come from Mr. S, who was variously stated to be a relative and a close friend, in the mortgage application he had stated that the loan came from his own savings.  Such limited evidence as to Mr. S that there was showed him to be an airline employee with an income of £7000 pa.  There was no evidence before the tribunal, other than the discredited word of Mr. B, of any capital being sent to this country by Mr. S, or of any accounting between Mr. B and Mr. S or of any sums being paid out of the Isle of Man account for the benefit of Mr. S.

 

33. There was also evidence of a payment of £300 made from an ATM machine at a casino of which Mr. B was a member at the time, and Mr. Shah was not.  In the absence of any other explanation, the tribunal was entitled to conclude on the balance of probabilities that this withdrawal was by Mr. B for his own benefit.  His use of the debit card to draw cash at the ATM machine was consistent with his having full access to the account and that the use of cheques purportedly signed by Mr. S was either a formality, with signed cheques being provided by Mr. S at Mr. B’s will, or a sham.

 

34. I note that Mrs. N has provided two witness statements denying what she previously admitted and asserting in one that she had separated from Mr. B in 1995, despite a child having been born to them in 1997 (see pp.1078-1081) and stating that they were still together at the end of 1997 (see paragraphs 6-7 of her affidavit dated 4 October 2011).  According to Mr. B, these typed statements were prepared by a mutual friend of himself and Mrs. N.  The suggestion in Mrs. N’s evidence that co-incidentally with her deciding to leave Mr. B she happened to meet a family friend, Mr. S, and asked him to help find suitable accommodation at a time when Mr. B had unbeknown to her just bought the property on behalf of Mr. S, is not one which, particularly in the light of the other evidence, could carry credibility with any tribunal.  The statements in her earlier, partially redacted, witness statement dated 9 April 2011 that Mr. B received some of his correspondence at the property “with the consent of my landlord” (pp.1078 and 1080) and that the address owned by her husband to which the rent was sent was one provided by Mr. S as his residence (p.1080), when he was a family friend whom she knew to live in Pakistan, also defy credibility.  Mrs. N’s statement to the police was made at a time when she had been in custody for 3 hours, but is consistent with the documentary evidence as to who was living in the property, is in her own words, and while it may perhaps have been inaccurate as to some details, has the ring of truth about it.  The subsequent documents produced in her name are artificial and contradictory.

 

35. Nor do I see any merit in any of Mr. B’s additional submissions.  I see no suggestion of bias on the part of the tribunal.  The tribunal was entitled to conclude that the “trust” was a sham, whenever it was produced, and that the account in his name was in fact operated solely for the benefit of Mr. B.  I see no reason to suppose that all the evidence was not taken into account.  His affidavit was considered by the Tribunal.  The divorce certificate in 2010 that the parties had lived apart for 5 years was on the basis of the evidence that they had provided to the court.  It no doubt suited them to provide such evidence, and it was provided at the same time as they were trying to persuade the council that this was the case.

 

36. There is an error in the tribunal’s reasons as to the date up to which the overpayments were made in error, but that is clearly a slip and the decision itself contains the correct dates.

 

37. In my judgment, while the tribunal’s reasoning may be criticised to the limited extent indicated by me, the tribunal came to the only conclusion to which it could properly have come on the evidence.  It does not appear to me that if it had properly considered the documentation produced by Mr. B it would have affected its decision in any way.  I do not see these appeals as having any real prospect of success and I therefore refuse permission to appeal. 

 

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

8 October 2013